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Full text of "North Carolina Register v.13 no. 13 (1/4/1999)"

NORTH CAROLINA 







Volume i3 



^ 



RECEIVED 

JAN 8 1999 

KATHFUflE n. EVERETT 
LAW LIBRARY 






hit 



a 






ISSUE 15 • Pages 1038 - 1099 




January f|>99 



\' 



i V^ 









PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



IN THIS ISSUE 

Voting Rights Letters 

„ Administration ^^ 

Agriatlture 
EnvironmeWtiind 



J/ 



->l'a^MK'wvM«iMNaV4U«NW<4«M'4>r> 



©urces 



Gener^ Contractors, Board of 
C" Health and Uuinan Services 
Psychology Bdard 
"Public Education '_, -^ '"^ 
Rules Review Conimission 
j^Onigste^ <Qa§e Decisions 



„««<i**' 



This publication is printed on permanent, acid-free paper in compliance wiihG.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consult with the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. 



Rule Notices. Filings, Register, Deadlines^ Copies of Proposed Rules, etc. 

Office of Administrative Hearings 

Rules Division 

Capehart-Crocker House 

424 North Bkiunt Street , ^"r--^" 

Raleigh, North Carolina 27601-2817 



contact: MolIyMasich, Director APAServkes 
Kvky Creech, PublKStions Coordinator 



;:;^^1 9) 733-2678 

(919)733-3#$2J=AX'« 

inmasich@oah.state.nc.i)&' 
rcreech@oah.state.nc.us 




Fiscal Notes & lEconomic Analysis 

Office of State Budget and Managetaeot 
116 West JMies Street ' , ^ - 

i I Raleigh, North Carolina 27683-8005 



r f 



contact: Warren Plonk 

> : 



(919)733-7061 
(91«) 733-0640 FAX 

wplonk@osbm.stateaic.us 



m 



iRute Rjisview and Legal Issues 

-i I Rules Review Commission 
\ I % ra^ Gleiwood Ave., Suite 159 
"Rlieigb, NQJEth Carolina 27685 




(919)733-272! 
(919) 733-9415 FAX 



\oontact Joe DeLuca Jr., Staff Director Counsel 
BobbxBiyan, Staff Attwncy , 




Legislative frocess Cim 



nle-4iakiag 



;■"* y^^\- •<» ■ 



Joint Legislative Administrative Procedure Oversight Committee 
545 Legislative Office Buildii^-^^ 
300 North Salisbury Street '^^-~. 
Raleigh, North Carolina 2761 1 

contact: Mary Shaping, Staff Liaison 




(919) 733-2§7»'^ 
ZZj[»>W)7T5-5460FAX 

nuurys@ms.ncga.state.Dc.\is 

County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (9 1 9) 7 1 5-2893 

Raleigh, Nordi Carolina 27603 




contact: Jim Blackburn or Rebecca Troutman 

NC League of Municipalities 
2 1 5 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



77»/5 publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1. 13 



NORTH CAROLINA 
REGISTER 



IN THIS ISSUE 




I. IN ADDITION 

Voting Rights Letters 



1038-1039 



II. RULE-MAKING PROCEEDINGS 
Agriculture 

N.C. State Fair 1040 

Environment and Natural Resources 

Wildlife Resources Commission 1040 

Licensing Boards 

General Contractors, Board for 1 040 



1041 



Volume 13, Issue 13 
Pages 1038 - 1099 



January 4, 1999 



in. PROPOSED RULES 

Environment and Natural Resources 

Coastal Resources Commission 1044 - 1047 

Health Services, Commission for 1047 - 1048 

Marine Fisheries Commission 1043 - 1044 

Health and Human Services 
Secretary of Health & Human Services 
Mental Health General 1042 - 1043 

Licensing Boards 

General Contractors, Board for 1048-1050 

Psychology Board 1050 - 1056 



This issue contains documents officially filed 
through December 9, 1998. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

PO Drawer 27447 

Raleigh, NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann 111, Director 

Camille Winston, Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 

Linda Dupree, Editorial Assistant 

Jessica Flowers, Editorial Assistant 



IV. TEMPORARY RULES 
Administration 

Nonpublic Education 1057 - 1059 

Health and Human Services 

Health Services, Commission for 1059 - 1061 

Public Education 

State Board of Education 1061 

V. RULES REVIEW COMMISSION 1062 - 1066 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1067-1074 

Text of Selected Decisions 
96 DOA 0006 1075 - 1099 

Vll. CUMULATIVE INDEX 1-69 



North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings. 424 North Blount Street. Raleigh. NC 
27601 . (ISSN 1 5200604) to mail at Periodicals Rates is paid at Raleigh. NC. POSTMASTER: Send Address'changes to the North Carolina Register. 
PO Drawer 27447. Raleigh. NC 2761 1-7447. 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


' 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


I4A 


Crime Control & Public Safet>' 


Electrolysis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


22 


18 


Secretary- of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Famih' Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


22 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


23 


Community Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapv Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psvchologv Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certitlcation 


65 






Veterinarv Medical Board 


66 



Note: Title 2 1 contains the chapters of the various occupational licensing boards. 



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INADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the Codifier 
of Rules for publication. 



U.S. Department of Justice 
Civil Rights Division 



EJ:VLO:DCB:cly Voting Section 

DJ 166-012-3 PO. Box 66128 

98-327 1 Washington, D. C 20035-6128 

98-3594 



November 19. 1998 



Jesse L. Warren, Esq. 
City Attorney 
P.O. Box 3136 
Greensboro, NC 27402-3 1 36 



Dear N4r. Warren: 

This refers to four annexations (Ordinance No. 98-135. 151. 153. and 155) and their designations to wards of the City of 
Greensboro in Guilford County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 
42 U.S.C. 1973c. We received your submissions on September 28 and October 28. 1 998. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
In addition, as authorized by Section 5. we reserve the right to reexamine these submissions if additional information that would 
otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the Procedures for 
the Administration of Section 5 (28 C.F.R. 51.41 and 51.43). 

Please be advised that it is unnecessary to provide multiple copies of documents when making a Section 5 submission. 

Sincerely. 



for Elizabeth Johnson 
Chief, Voting Section 



13:13 NORTH CAROLINA REGISTER January 4, 1999 1038 



INADDITION 



U.S. Department of Justice 
Civil Rights Division 



EJ:DHH:TG:par Voting Section 

DJ 1 66-0 1 2-3 PO. Box 66128 

98-3342 Washington. D.C 20035-6128 



November 24. 1998 



Richard J. Rose. Esq. 

PoNTier & Spruill 

r6. Box 353 

Rocky Mount. North Carolina 27802-0353 



Dear Mr. Rose; 

This refers to four annexations (Ordinance Nos. 0-97-69. 0-98-16. 0-98-32. and 0-98-51) and the designation of the annexed 
areas to districts of the Cit\ of Rock\' Mount in Edgecombe and Nash Counties. North Carolina, submitted to the Attorney General 
pursuant to Section 5 of the Voting Rights Act. 42 U.S.C. 1973c. We received vour submissions on September 30. 1998. 

The Attomev General does not interpose anv' objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attomev General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 



for Elizabeth Johnson 
Chief. Voting Section 



1039 NORTH CAROLINA REGISTER Januan 4, 1999 13:13 



RULEMAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency must 
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. 
Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the 
section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and 
can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-2I.2. 



TITLE 2 - DEPARTMENT OF AGRICULTURE 



Authority for the rule-making: G.S. 75A-3; 75A-15 



CHAPTER 20 - THE NORTH CAROLINA STATE 
FAIR 

A Totice of Rule-making Proceedings is hereby given by the 
J. V North Carolina Department of Agriculture in accordance 
with G.S. 150B-21.2. The agency shall subsequently publish in 
the Register the text of the rule it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Afiected by this Rule-Making: 

2 NCAC 20B . 0104. Other rules may be proposed in the course 
of the rule-making process. 

Authority for the rule-making: G.S. 106-503 

Statement of the Subject Matter: This rule establishes fees 
and policies for admission to the annual State Fair The 
proposed change would increase the youth admission fee fi-om 

$1 to $2. 



Statement of the Subject Matter: No Wake Zones 

Reason for Proposed Action: The local County Board of 
Commissioners in Burke and McDowell counties and the Board 
of Commissioners of the Town of Topsail Beach in Pender 
County initiated the no-wake zones pursuant to G.S. 75A-15 to 
protect public safety in the area by restricting vessel speed. The 
Wildlife Resources Commission may adopt this Rule as a 
Temporary Rule pursuant to S.L 1997-0403 following this 
abbreviated notice. 

Comment Procedures: The record will be open for receipt of 
written comments from January 4, 1999 to March 5, 1999. Such 
written comments must be delivered or mailed to the North 
Carolina Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 



Reason for Proposed Action: To make the State Fair youth 
admission fee comparable to similar events, to adjust for 
inflation, and to provide additional revenues for increased 
operating expenses of the State Fair 

Comment Procedures: Written comments may he submitted 
no later than March 15, 1999, to David S. McLeod, Secretary, 
Board of Agriculture. PO Box 27647. Raleigh, NC 27611. 



CHAPTER 12 - LICENSING BOARD 
FOR GENERAL CONTRACTORS 

A Totice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Licensing Board for General Contractors 
in accordance with G.S. 150B-21.2. The agency shall 
subsequently publish in the Register the text of the rule it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

A Toft'ce of Rule-making Proceedings is hereby given by the 
J. V North Carolina Wildlife Resources Commission in 
accordance with G.S. 150B-21.2. The agency shall subsequently 
publish in the Register the text of the rules it proposes to adopt 
as a result of this notice of rule-making proceedings and any 
comments received on this notice. 



Citation to Existing Rules Affected by this Rule-Making: 

21 NC.4C 12 .0504. Other rules may be proposed in the course 
of the rule-making process. 

Authority for the rule-making: G.S. 87-1: 87-10 

Statement of the Subject Matter: Notice is hereby given in 
accordance with G.S. 150B-21.2 that the North Carolina 
Licensing Board for General Contractors (Board) will consider 
adopting rules, repealing rules, or amending rules to delete the 
term "qualified" from the phrase "qualified independent 
accountant" in the increase in limitation rule. 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOF .0321, .0323. .0339. Other rules ma}' be 
proposed in the course of the rule-making process. 



Reason for Proposed Action: To delete the term "qualified" 
from the phrase "qualified independent accountant. " 

Comment Procedures: Written comments may be submitted 



13:13 



NORTH CAROLINA REGISTER 



January 4, 1999 



1040 



RULE-MAKING PROCEEDINGS 



to Mark D. Selph at the Board's ojfice. The Board's address is 
PO Box 1 ^87. Raleigh, NC 27619. 



J 04] 



NORTH CAROLINA REGISTER January 4, 1999 13:13 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice 
of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication 
date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days 
for a rule that has a substantial economic impact of at least Jive million dollars ($5,000,000). Statutory reference: G.S. 150B- 

21.2. 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the Secretary of Health and Human Services intends 
to adopt the rules cited as lONCAC 14V.7201-.7205. Noticeof 
Rule-making Proceedings was published in the Register on 
September 15, 1998. 

Proposed Effective Date: August 1, 2000 

A Public Hearing will be conducted at 4:00 p.m. on January 
21, 1999 at the Holiday Inn-Raleigh Crabtree, 4100 Glenwood 
Avenue, Raleigh, NC 27612, (919) 782-8600. 

Reason for Proposed Action: C.F.R. 42, Part 441, Subpart G 
addresses Choice of Provider and in order for North Carolina 
to comply with requirements of the Health Care Financing 
Administration (HCFA), it must ensure that area programs offer 
a choice of provider to clients who receive CAP/MR-DD 
services. 

Comment Procedures: Written comments should be submitted 
through February 3, 1999 to Charlotte F Hall, Rule-making 
Coordinator. Division of Mental Health Developmental 
Disabilities and Substance Abuse Services, 325 N. Salisbury 
Street, Albemarle Building, Suite 1156, Raleigh, NC 27603- 
5906. 



In addition to the definitions contained m G.S. 122C-3 and 
Rule .0103 of this Subchapter, the following definitions shall 
also apply: 

£1} "CAP-MR/DD" means Community Altematiye 
Program for persons with Mental Retardation and 
other Developmental Disabilities. 
(2) "Direct service provider" means any of the CAP- 
MR/DD funded services other than Case Management 
in which an individual is paid to conduct the service 
face-to-face with the recipient. 

Authority G.S 122C-112. 

.7203 DIVISION DIRECTOR RESPONSIBILITIES 

(a) The Division of Mental Health. Developmental 
Disabilities and Substance Abuse Services (DMH/DD/SAS) 
shall designate and the Division of Medical Assistance (DMA) 
shall approve a lead agency for CAP-MR/DD. 

(bj Lead agency designation shall be limited to an area 
program or another public entity, 
(c) Determination of lead agency status shall be based upon: 
results of DMH/DD/SAS accreditation visits; or 
results of DMH or DMH Medicaid audits or 



£2} 



complaint investigations; and 

implementation of the principle of separation of direct 

services and case management. 



Authoritv G.S 122C-112. 



Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 1 2-month period. 

CHAPTER 14- MENTAL HEALTH: GENERAL 

SUBCHAPTER 14V - RULES FOR MENTAL HEALTH, 

DEVELOPMENTAL DISABILITIES, 

AND SUBSTANCE ABUSE FACILITIES AND 

SERVICES 

SECTION .7200 - CAP-MR/DD SERVICES 

.7201 SCOPE 

The rules m this Section shall apply to any facility, which 
provides services to CAP-MR/DD recipients. 

Authority G.S 122C-112. 

.7202 DEFINITIONS 



.7204 LEAD AGENCY RESPONSIBILITIES 

The designated lead agency for CAP-MR/DD services shall: 

(1) be responsible for the administration and operation of 
CAP-MR/DD services in its area; 

(2) assure that the policies and procedures of CAP- 
MR/DD are followed; and 

£3} develop strategies to insure implementation of 
objective case management. 
Authority G.S 122C-112. 

.7205 AREA PROGRAM RESPONSIBILITIES 

(aj With the approval of the Division of MH/DD/SAS. if the 
area program is designated as lead agency, the area program may 
serve as direct service provider in the event one or more of the 
following circumstances apply: 

(1) there shall be contractual arrangements, court 
a pproved treatment plans, property ownership 
obligations, or other financial obligations which 
cannot be breached; 

(2) all reasonable efforts to attract providers to the area 
have failed and there are no providers available to 
render services; and 



13:13 



NORTH CAROLINA REGISTER 



January 4, 1999 



1042 



PROPOSED RULES 



(3) the recipient indicates the desire to retain the area 

authority as the direct service provider and the lead 

agency has demonstrated that the recipient was 

provided complete and non-biased information 

regarding their right to a choice of providers, ail 

provider opportunities and options available. 

fb) Prior to the provision of direct service, the area program 

shall submit requests to act as direct service provider to the 

Division of MH/DD/SAS. 

( 1 ) The requests shall be reviewed by a panel established 
by the Division; 

The panel shall use the criteria set forth in Paragraph 
(a) of this Rule to act on these requests; 
Recommendations of the panel shall be submitted to 



(4J 



iiJ 



the Division Director for approval; 

Area programs shall be notified of provider of direct 

service decision within 45 days of the date of request 

submission for panel review; and 

The Division Director may grant emergency approval 

to provide direct service to an area program in order 

to prevent disruption in service. 



Authorin- GS. I22C-112. 



TITLE I5A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. I SOB- 2 1.2 
that the North Carolina Marine Fisheries Commission 
intends to amend the rule cited as ISA NCAC 3Q .0107. Notice 
of Rule-making Proceedings was published in the Register on 
April IS. 199''. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 7,00 p.m. on January 
21, 1999 at the Archdale Building. Ground Floor Hearing 
Room, Raleigh. \C. 

Reason for Proposed Action: The Marine Fisheries 
Commission presently has a creel limit for shad in coastal 
waters and the Wildlife Resources Commission has a creel limit 
for shad In inland waters. The proposed rule would establish a 
joint rule which would place the same limit on shad in Joint 
waters. 

Comment Procedures: Comments and statements, both 
written and oral, may be presented at the hearing. Written 
comments are encouraged and mcry be submitted to the Marine 
Fisheries Commission, c/o Juanlta Gaskill, PO Box 769, 
Morehead City, NC 28S57. These written and oral comments 
must be received no later than February 3. 1999. Oral 
preseritation lengths may be limited, depending on the number 
of people that wish to speak at the public hearing. 

Fiscal Note: 777/5 Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does not 



have a substantial economic impact of at least five million 
dollars I SS. 000,000) in a 12-month period. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 3Q - LICENSES, LEASES AND 
FRANCHISES 

SECTION .0100 - LICENSES 

.0107 SPECIAL RULES, JOINT WATERS 

In order to effectively manage all fisheries resources in joint 
waters and in order to confer enforcement powers on both 
fisheries enforcement officers and wildlife enforcement officers 
with respect to certain rules, the Marine Fisheries Commission 
and the Wildlife Resources Commission deem it necessary to 
adopt special rules for joint waters. Such rules supersede any 
inconsistent rules of the Marine Fisheries Commission or the 
Wildlife Resources Commission that would otherwise be 
applicable in joint waters under the provisions of 15A NCAC 
3Q.0106: 

( 1 ) Striped bass: 

(a) It is unlawful to possess any striped bass or 
striped bass hybrid taken by any means which 
is less than 18 inches long (total length). 

(b) It is unlawful to possess more than three 
striped bass or striped bass hybrids taken by 
hook and line in any one day from joint waters. 

(c) It is unlawful to engage in net fishing for 
striped bass or striped bass hybrids in joint 
waters except as authorized bs' duly adopted 
rules of the Marine Fisheries Commission. 

(d) It is unlawful to possess striped bass or striped 
bass hybrids in the joint waters of Albemarle. 
Currituck. Roanoke, and Croatan Sounds and 
their tributaries, excluding the Roanoke River, 
except during seasons as authorized by duly 
adopted rules of the Marine Fisheries 
Commission. 

(e) In the joint waters of the Roanoke River and its 
tributaries including Cashie. Middle and 
Eastmost Rivers, striped bass and hybrid 
striped bass fishing season, size limits and 
creel limits shall be the same as those 
established by duly adopted rules of the 
Wildlife Resources Commission for adjacent 
inland fishing waters. 

(2) Lake Mattamuskeet: 

(a) It is unlawful to set or attempt to set any gill 
net in Lake Mattamuskeet canals designated as 
joint waters. 

(b) It is unlawful to use or attempt to use any trawl 
net or seines in Lake Mattamuskeet canals 
designated as joint waters. 

(3) Cape Fear River. It is unlav\ful to use or attempt to 
use any net or net stakes within 800 feet of the dam at 
Lock No. I on the Cape Fear River. 

(4) Shad: It js unlawful to possess more than 10 



104 J 



NORTH CAROLINA REGISTER 



January 4, 1999 



13:13 



PROPOSED RILES 



American shad or hickory shad, [n the aggregate, per 
person per day taken by hook-and-hne. 

Authority (J. S. 113-132: 113-134: 143B-2S9.52. 

Notice is hereby given in accordance with G.S. I50B-21.2 
that the Coastal Resources Commission intends to adopt 
the rules cited as 15A NCAC "W .2401-2405 and amend the 
rules cited as 15A NCAC 7H .0309. .2101-2102. .2105. Notice 
of Rule-making Proceedings was published in the Register on 
September 1. 1998. 

Proposed Effective Date: August I. 2000 

A Public Hearing will be conducted at 4:30 p.m. on January 
28. 1 999 at the Ramada Inn and Conference Center. HOI South 
I irginia Dare Trail. Kill Devil Hills. NC 27948. 

Reason for Proposed Action: 

ISA A'C.4C 7H .0309 - This Rule is being amended to allow 

small scale, non-essential development that does not induce 

further growth in the Ocean Hazard Area, such as the 

construction of single family piers and small scale erosion 

control measures that do not interfere with natural ocean front 

processes. 

ISA NCAC 7H .2101:2102, .2105 - These Rules are being 

amended to allow the construction of offshore parallel 

breakwaters, made from wood, plastic lumber, or metal sheet 

piling for shoreline protection in conjunction with existing or 

created coastal wetlands. 

ISA NCAC 7H .2401:2405 - These Rules are being adopted to 

prevent shoreline erosion in Public Trust areas and Estuarine 

waters. 

Comment Procedures: Contact Charles Jones. 151-B 
Highway 24. Morehead City. NC 285'70. (252) 808-2808. 
Comments will be accepted through Fehruaiy 3. 1999. 

Fiscal Note: These Rules. 15A NC.4C "H .0309. .2101-2102. 
.2105. .2401-. 2405. affect the expenditure or distribution of 
State fiends subject to the Executive Budget Act. .Article 1 of 
Chapter 143. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .0300 - OCEAN HAZARD AREAS 

.0309 USE STANDARDS FOR OCEAN HAZARD 
AREAS: EXCEPTIONS 

(a) The following types of development ma\ be permitted 
seaward of the oceanfront setback requirements of Rule .0306(a) 
of the Subchapter if all other provisions of this Subchapter and 



other state and local regulations are met: 

(1) campgrounds that do not involve substantial 
permanent structures; 

(2) parking areas with cla\. packed sand or similar 
surfaces; 

(3) outdoor tennis courts; 

(4) elevated decks not exceeding a footprint of 500 
square feet; 

(5) beach accessways consistent with Rule .0308(c) of 
this Subchapter; 

(6) unenclosed, uninhabitable gazebos with a footprint of 
200 square feet or less; 

(7) uninhabitable, single-stor} storage sheds with a 
footprint of 200 square feet or less; 

(8) temporars amusement stands; and 

(9) swimming pools. 

In all cases, this development shall only be permitted if it is 
landward of the vegetation line; involves no significant alteration 
or removal of primary or frontal dunes or the dune vegetation; 
has overwalks to protect any existing dunes; is not essential to 
the continued existence or use of an associated principal 
development; is not required to satisfy minimum requirements of 
local zoning, subdivision or health regulations; and meets all 
other non-setback requirements of this Subchapter. 

(b) Where strict application of the oceanfront setback 
requirements of Rule .0306(a) of this Subchapter would preclude 
placement of permanent substantial structures on lots existing as 
of June 1. 1979. single family residential structures ma\ be 
permitted seaward of the applicable setback line in ocean 
erodible areas, but not inlet hazard areas, if each of the following 
conditions are met: 

( 1 ) The development is set back from the ocean the 
maximum feasible distance possible on the existing 
lot and the development is designed to minimize 
encroachment into the setback area; 

(2) The development is at least 60 feet landward of the 
vegetation line; 

(3) The development is not located on or in front of a 
frontal dune, but is entirely behind the landward toe 
of the frontal dune; 

(4) The development incorporates each of the following 
design standards, which are in addition to those 
required by Rule .0308(d) of this Subchapter. 

(A) All pilings have a tip penetration that extends 
to at least four feet below mean sea le\el; 

(B) The footprint of the structure be no more than 
1.000 square feet or 10 percent of the lot size, 
whichever is greater. 

(5) All other provisions of this Subchapter and other state 
and local regulations are met. If the development is to 
be serviced b\ an on-site waste disposal s\stem, a 
copy of a valid permit for such a svstem must be 
submitted as part of the CAMA permit application. 

(c) Reconfiguration of lots and projects that have a 
grandfather status under Paragraph (b) of this Rule shall be 
allowed prov ided that the following conditions are met: 

(1) Development is setback from the first line of stable 
natural vegetation a distance no less than that required 



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January 4, 1999 



1044 



PROPOSED RULES 



by the applicable exception: 

(2) Reconfiguration will not result in an increase in the 
number of buildable lots within the Ocean Hazard 
AEC or have other adverse environmental 
consequences; and 

(3) Development on lots qualifying for the exception in 
Paragraph (b) of this Rule must meet the requirements 
of Paragraphs ( 1 ) through (5) of that Paragraph. 

For the purposes of this Rule, an existing lot is a lot or tract of 
land which, as of June 1, 1979, is specifically described in a 
recorded plat and which cannot be enlarged by combining the lot 
or tract of land with a contiguous lot(s) ortract(s) of land under 
the same ownership. The footprint is defined as the greatest 
exterior dimensions of the structure, including covered 
stairways, when extended to ground level. 

(d) The following types of water dependent development shall 
be permitted seaward of the oceanfront setback requirements of 
Rule .0306(a) of this Section if all other provisions of this 
Subchapter and other state and local regulations are met: 

( 1 ) piers providing public access (excluding any pier 
house, office, or other enclosed areas): and 

(2) maintenance and replacement of existing state-owned 
bridges and causeways and accessways to such 
bridges. 

(e) Where application of the oceanfront setback requirements 
of Rule .0306(a) of this Section would preclude replacement of 
a pier house associated with an existing ocean pier, replacement 
of the pier house shall be permitted if each of the follovN'ing 
conditions are met: 

( 1 ) The associated ocean pier provides public access for 
fishing or other recreational purposes whether on a 
commercial, public, or nonprofit basis: 

(2) The pier house is set back from the ocean the 
maximum feasible distance while maintaining existing 
parking and sewage treatment facilities and is 
designed to reduce encroachment into the setback 
area: 

(3) The pier house shall not be enlarged beyond its 
original dimensions as of January 1, 1996: 

(4) The pier house shall be rebuilt to comply with all 
other provisions of this Subchapter: and 

(5) If the associated pier has been destroyed or rendered 
unusable, replacement of the pier house shall be 
permitted only if the pier is also being replaced and 
returned to its original function. 

(f) In addition to the development authorized under 
Rule. 0309(d) of this Section, small scale, non-essential 
development that does not induce further growth in the Ocean 
Hazard Area, such as the construction of single family piers and 
small scale erosion control measures that do not interfere with 
natural ocean front processes, may be permitted on those non 
oceanfront portions of shoreline within a designated Ocean 
Hazard Area that exhibit features characteristic of Estuarine 
Shoreline. Such features include the presence of wetland 
vegetation, lower wave energy and lower erosion rates than in 
the adjoining Ocean Erodible Area. Such development shall be 
permitted under the standards set out in Rule .0208 of this 
Subchapter For the purpose of this Rule, small scale is defined 



as those projects which are eligible for authorization under 15A 
NCAC 7H.1100. .1200 and 7K .0203. 

Authority G.S. 113A-107(a): 113A-]07(b): 113A-113fb)(6)a: 
}13A-113(b)(6)h: ]]3A-113(b)(6)d: 113A-I24. 

SECTION .2100 - GENERAL PERMIT FOR 

CONSTRUCTION OF MARSH ENHANCEMENT 

BREAKWATERS FOR SHORELINE PROTECTION IN 

ESTUARINE AND PUBLIC TRUST WATERS 

.2101 PURPOSE 

This permit will allow the construction of offshore parallel 
breakwaters, made from wood, plastic lumber, or metal sheet 
piling for shoreline protection in conjunction with existing or 
created coastal wetlands. This permit will only be applicable 
where a shoreline is experiencing erosion in public trust areas 
and estuarine waters according to authority provided in 15A 
NCAC 7J .1 100 and according to the following guidelines. This 
permit will not apply within the ocean hazard AEC, the inlet 
hazard AEC, or waters adjacent to these AEC' s . AEC's, with 
the exception of those portions of shoreline within the Inlet 
Hazard Area AEC that feature characteristics of Estuarine 
Shorelines. Such features include the presence of wetland 
vegetation, lower wave energy, and lower erosion rates than in 
adjoining Ocean Erodible Area. 

Authority- G.S. IBA-IO': I13A-118.I. 

.2102 APPROVAL PROCEDURES 

(a) The applicant must contact the Division of Coastal 
Management and compl e t e an application form r e qu es ting 
request approval for development. The applicant shall provide 
information on site location, dimensions of the project area, and 
his name and address. 

(b) The applicant must provide: 

( 1 ) confirmation that a written statement has been 
obtained signed by the adjacent riparian property 
owners indicating that they have no objections to the 
proposed work: or 

(2) confirmation that the adjacent riparian property 
owners have been notified b\ certified mail of the 
proposed work. Such notice shall instruct adjacent 
property owners to provide any comments on the 
proposed development in writing for consideration by 
permitting officials to the Division of Coastal 
Management within 10 days of receipt of the notice, 
and. indicate that no response will be interpreted as no 
objection. DCM staff will review all comments and 
determine, based on their relevance to the potential 
impacts of the proposed project, if the proposed 
project can be approved b\ a General Permit. If DCM 
staff finds that the comments are worthy of more 
in-depth review, the applicant \\ ill be notified that he 
must submit an application for a major development 
permit. 

(c) No work shall begin until an on-site meeting is held with 
the applicant and appropriate Division of Coastal Management 



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PROPOSED RULES 



representative so that the proposed breakwater alignment can be 
appropriately marked. Written authorization to proceed with the 
proposed development may be issued during this visit. 
Construction of the breakwater must begin within 90 days of this 
visit or the general authorization e.xpires and it will be necessary 
to re-examine the alignment to determine if the general 
authorization can be reissued. 

Authority iJ.S. I13A-1U': II3A-II8.I. 

.2105 SPECIFIC CONDITIONS 

(a) The breakwater shall be positioned no more than 20 feet 
waterward of the mean high water or normal water level contour 
(whichever is applicable) or 20 feet waterward of the waterward 
edge of existing em e rgent wetlands at any point along its 
alignment. For narrow waterbodies (canals, creeks, etc.) the 
breakvNater alignment shall not be positioned offshore more than 
one sixth (1/6) the width of the waterbody. 

(b) Breakwaters authorized under this General Permit shall be 
allowed only in waters that average less than three feet in depth 
along the proposed alignment as measured from the mean high 
water or normal water level contour 

(c) Where Department Staff determine that insufficient 
coa s tal mar s h wetland habitat exists along the permittee's 
shoreline to provide adequate shoreline stabilization, the 
permittee shall be required to plant appropriate coa s tal mar s h 
wetland species landward of the breakwater structure as directed 
by Department Staff. 

(d) Construction authorized by this general permit will be 
limited to a maximum length of 500 feet. 

(e) The breakwater shall be constructed with an equal gap 
between each sheathing board totaling at least one inch of open 
area every linear foot of breakwater. The breakwater shall have 
at least one five foot opening at every 1 00 feet. The breakwater 
sections shall be staggered and overlap as long as the five foot 
separation between sections is maintained. Overlapping sections 
shall not overlap more than 10 feet. 

(f) The height of the breakwater shall not exceed six inches 
above mean high water or the normal water level. 

(g) Offshore breakwater sections shall be set back 15 feet 
from the adjoining property lines and the riparian access 
dividing line. The line of division of riparian access shall be 
established b\ drawing a line along the channel or deep water in 
front of the property, then drawing a line perpendicular to the 
line of the channel so that it intersects with the shore at the point 
the upland property line meets the water's edge. The set back 
ma\ be waived b\ written agreement of the adjacent riparian 
owner(s) or when the two adjoining riparian owners are 
co-applicants. Should the adjacent property be sold before 
construction of the breakwater begins, the applicant shall obtain 
a written agreement with the new owner waiving the minimum 
setback and submit it to the Division of Coastal Management 
prior to initiating any construction of the breakv\ater. 

(h) Breakwaters shall be marked at 50 foot intervals with 
yellow reflectors extending at least three feet above mean high 
water. 

(i) No backfill of the breakwater or any other till of vsetlands. 
estuarine waters, public trust areas, or highground is authorized 



by this general permit. 

(j) No excavation of the shallow water bottom. an\ wetlands, 
or high ground is authorized by this general permit. 

(k) The breakwater must be constructed of treated wood, 
plastic lumber, metal sheet piles or other suitable materials 
approved b\ Department personnel. 

(1) Perpendicular sections, return walls, or sections which 
would enclose estuarine waters or public trust areas shall not be 
allowed under this permit. 

(m) The permittee will maintain the breakwater in good 
condition and in conformance w ith the terms and conditions of 
this permit or the remaining breakwater structure shall be 
removed within 90 davs of notification from the Division of 
Coastal Management. 

Authority G.S. IISA-IO': I ISA-UN. I. 

SECTION .2400 - GENERAL PERMIT FOR 

PLACEMENT OF RIPRAP FOR WETLAND 

PROTECTION IN ESTUARINE AND PUBLIC 

TRUST WATERS 

.2401 PURPOSE 

This permit will allow the placement of riprap immediately 
adjacent to and waterward of wetlands. This permit will only be 
applicable where a shoreline js experiencing erosion m public 
trust areas and estuarine waters according to authority provided 
in I5A NCAC 7J . 1 100 and according to the following 
guidelines. This permit will not appK within the Ocean Hazard 
System of Areas of Environmental Concern (AEC) or waters 
adjacent to these AEC's with the exception of those portions of 
shoreline within the Inlet Hazard Area AEC that feature 
characteristics of Estuarine Shorelines. Such features include 
the presence of wetland vegetation, lower wave energy, and 
lower erosion rates than in the adjoining Ocean Erodible Area. 

Authority G.S. U3A-Ur: 113.4-118.1. 

.2402 APPROVAL PROCEDURES 

(a) The applicant must contact the Division of Coastal 
Management and request approyal for development. Ihe 
applicant shall provide information on site location, dimensions 
of the project area, and his name and address. 

(b) The applicant must provide: 

(1) confirmation that a written statement has been 
obtained si gned by the adjacent riparian property 
owners indicating that the\ have no objections to the 
proposed work: or 

(2) confirmation that the adjacent riparian property 
owners have been notified by certified mail of the 
proposed work. Such notice shall instruct adjacent 
propert\ owners to provide any comments on the 
proposed development in writing for consideration by 
permitting officials to the Division of Coastal 
Management within 10 days of receipt of the notice, 
and, indicate that no response will be interpreted as no 
objection. DCM staff will review aj] comments and 
determine, based on their relevance to the potential 



]3:13 



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1046 



PROPOSED RULES 



impacts of the proposed project, if the proposed 

project can be approved by a General Permit. If PCM 

staff finds that the comments are worthy of more 

in-depth review, the appHcant will be notified that he 

must submit an application for a major development 

permit. 

(c) No work shall begin until an on-site meeting is held with 

the applicant and appropriate Division of Coastal Management 

representative so that the wetland protection structure can be 

appropriately marked. Written authorization to proceed with the 

proposed development may be issued during this visit. 

Construction of the wetland protection structure must be 

completed within 90 days of this visit or the general 

authorization expires and it will be necessary to re-examine the 

alignment to determine if the general authorization can be 

reissued. 

Authority G.S. I13A-107: 1I3A-I18.1. 

.2403 PERMIT FEE 

The applicant must p ay a permit fee of fifty dollars ($50.00). 
This fee may be paid by check or money order made payable to 
the Department. 

Authorities. 113A-I07: 113A-1I8.!. 

.2404 GENERAL CONDITIONS 

(a) This permit authorizes only the construction of wetland 
protection structures conforming to the standards herein. 

(b) Individuals shall allow authorized representatives of the 
Department of Environment and Natural Resources (DENR) to 
make periodic inspections at any time deemed necessary in order 
to be sure that the activity being performed under authority of 
this general pemiit is in accordance with the terms and 
conditions prescribed herein. 

(c) There shall be no significant interference with navigation 
or use of tfie waters by the public by the existence of the riprap 
structure authorized herein. 

(d) This general permit will not be applicable to proposed 
construction when the Department determines after any 
necessary investigations, that the proposed activity would 
adversely affect areas which possess historic, cultural, scenic, 
conservation, or recreational values. 

(e) This general permit will not be applicable to proposed 
construction where the Department determines that authorization 
may be warranted, but that the proposed activity might 
significantly affect the quality of ftie human environment, or 
unnecessarily endanger adjoining properties, fn those cases. 
individual permit applications and review of tlie proposed 
project will be required according to 1 5 A NCAC 7J. 

(f) This permit does not eliminate the need to obtain any other 
required state, local, or federal authorization. 

(g) Development carried out under this permit must be 
consistent with all local requirements. AEC Guidelines, and 
local land use plans current at the time of authorization. 

Authorities. 113.4-10': 1I3A-118.1. 



.2405 SPECIFIC CONDITIONS 

(a) This general permit will only be applicable along 
shorelines possessing wetlands, and which exhibit an identifiable 
erosion escarpment. 

(b) The height of the erosion escarpment shall not exceed 
three feet. 

(c) The riprap shall be placed immediately waterward of the 
erosion escarpment. 

(d) The riprap must be positioned so as not to exceed a 
maximum of five feet wateryvard of the erosion escarpment at 
any point along its alignment. 

(e) The riprap must be positioned so as not to exceed a 
maximum of six inches above the elevation of the adjacent 
wetland substrate. 

(f) Where Department staff determine that insufficient 
wetlands or coastal marsh exists along the permittee's shoreline 
to provide adequate shoreline stabilization, the permittee shall be 
required to plant appropriate coastal marsh or wetland species 
landward of the riprap structure as directed by Department staff 

(g) Construction authorized by tliis general permit will be 
limited to a maximum length of 500 feet. 

(h) No backfill or any other fill of wetlands, submerged 
aquatic vegetation, estuarine waters, public trust areas, or 
highground areas is authorized by this general permit. 

ij} No excavation of the shallow water bottom, any wetlands. 
or high ground is authorized by this general permit. 

(j) The riprap must not be placed in such a manner as to 
impede yvater fiow into or out of any natural channel or stream. 

(k) The riprap material must be free from loose dirt or any 
pollutant. It must be of a size sufficient to prevent its movement 
from ftie site by wave or current action. 

UJ Riprap material must consist of clean rock or masonry 
materials such as marl, granite or broken concrete. Materials 
such as tires, car bodies, scrap metal, paper products, tree limbs, 
wood debris, organic material or similar materials are not 
considered appropriate riprap for the purposes of this General 
Permit. 

(m) If the crossing of wetlands with mechanized or non- 
mechanized construction equipment is necessary, temporary 
construction mats shall be utilized for the area(s) to be crossed. 
The temporary mats shall be removed immediately upon 
completion of construction of the riprap structure. 

(n) The permittee will maintain the structure in good 
condition and in conformance yvith the terms and conditions of 
this permit or the remaining riprap structure shall be removed 
within 90 days of notification from the Division of Coastal 
Management. 

Authorit}-G.S 113A-1U7; 113A-118.1. 



•k'k'kit'k'k'k'k'k 



•k "k "k -k "k 



Notice is hereby given in accordance with G.S. 150B-21.2 
that the Commission for Health Sen-ices intends to amend 
the rules cited as 15A NCAC 18A .1808. .1810. .1812. Notice 
of Rule-making Proceedings for 15A NCAC 18A .1810 M-as 
published in the Register on June 5. 1998 and for 15A NCAC 
18A . 1808. .1812 was published in the Register on October 15. 



1047 



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13:13 



PROPOSED RULES 



1998. 



Proposed Effective Date: August I. 2000 

A Public Hearing will be conducted at 9:00 a.m. on February 
2. 1999 at the Ground Floor Hearing, Room. Archdale Building. 
512 N. Salisbury Street. Raleigh. i\C. 

Reason for Proposed Action: 

ISA .\CAC 18.4 .1808 - seeks to reduce lighting requirements 

in lobbies, halls, stairs, in hotels, motels, tourist homes and 

other lodging establishments. 

ISA I\'CAC 18.4 .1810 - This rule is necessary to broaden the 

temperature range requirements for hot water in lodging 

operations. New and existing lodging operations are currently 

finding it extremely difficult to meet the four degree range in 

temperature allowed in the rule. 

ISA MCAC ISA .1812 - should reduce lighting requirements in 

guest rooms of hotels, motels and lodging establishments. It 

also eliminates the requirement for sanitizing tableware in hotel 

efficiencies, per the ruling of the 199~ General .Assembly. 

Comment Procedures: Please mail comments to Susan 
Grayson. DESR, Division of Environmental Health, PO Box 
29534, Raleigh. NC 27626-0534. Comments will he accepted 
through February 2. 1 999. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (55,000.000) in a 1 2-month period 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 



SECTION. 1800 



SANITATION OF LODGING 
PLACES 



.1808 VENDING AREAS 

(a) The lobby, hal s . stairs, ic e Ice and vending machine 
locations. — and oth e r common — ar e a s locations shall have 
ventilation and at least 10 foot-candles of light at 30 inches 
above the floor. 

(b) Floors, walls, ceilings, windows and ventilation shall be 
kept clean and in good repair. 

(c) Furniture, fixtures, draperies, and other accessories shall 
be clean and in good repair. 



NC AC 1 8A . 1 700 and 1 5 A NC AC 1 8C may be obtained from 
the Division of Environmental Health. Department of 
Environm e nt. H e alth Environment and Natural Resources. P.O. 
Bo,\ 27687. Raleigh. North Carolina 267 1 1 -7687. At least once 
a year, a sample of water shall be collected by the Department to 
perform bacteriological examinations. However, a water sample 
is not required for a lodging establishment using a community 
water supply regulated under 15A NCAC 18C. 

(c) Cross-connections with sewage lines or unapproved water 
supplies or other potential sources of contamination are 
prohibited. 

(d) Hot water heating facilities shall be provided. Hot and 
cold running water under pressure shall be provided at all times 
in guest rooms, for food preparation areas, and other areas in 
which water is required for cleaning. 

(e) Hot water in guest rooms shall be provided at a 
temperature of no less than 1 16^F (46.7"C) and no more than 
U{^^ 128°F (4 8 .9°C). (53.3X). 

Authority G.S. I30A-248. 

.1812 GUESTROOMS 

(a) Gu es trooms and bathrooms Bathrooms and lavoratories 
shall have lighting with a minimum of 30 foot-candles of light at 
30 inches above the floor. Where natural ventilation only is 
provided, outside openings shall be screened. Windows and 
glass doors shall be kept clean and in good repair In the 
absence of windows, air conditioning and artificial lighting 
constitutes satisfactory compliance. 

(b) Window coverings shall be kept clean and in good repair. 

(c) Two sheets shall be provided for each bed. The lower 
sheet shall be folded under both ends of the mattress. The upper 
sheet shall be folded under the mattress at the lower end and 
folded over the cover for at least six inches at the top end. Bed 
linens, including sheets, pillow cases, blankets and bedspreads, 
shall be kept clean and in good repair. 

(d) The floors, walls, and ceilings of bedrooms, closets, and 
storage areas shall be kept clean and in good repair. Furniture, 
fixtures, carpets and other accessories shall be kept clean and in 
good repair. 

(e) All lodging establishments shall be kept free of roaches, 
flies and other pests. Guestrooms having outside openings shall 
be effectively screened unless air conditioned. 

(f) If cooking and mulli u se e ating and drinking utensils ar e 
provid e d for us e by gu es t s in cooking, food pr e paration, ut e nsil 
wa s hing ar e as occupi e d by gu e st s , th e lodging e stabli s hm e nt 
s hall v . as. rin se and s anitiz e th e cooking and multi us e e ating 
and drinking ut e n s ils prior to u se by s ucc ee ding gu e sts. 



Authoriri- G.S. I30A-248. 



Authority G.S. 130A-248. 



.1810 WATER SUPPLY 

(a) Water supplies shall meet the requirements in I5A NCAC 
I8A.I700. 

(b) The water supply used shall be located, constructed, 
maintained, and operated in accordance with the Commission for 
Health Services" rules governing water supplies. Copies of 1 5A 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 12 - LICENSING BOARDS FOR 
GENERAL CONTRACTORS 



13:13 



NORTH CAROLINA REGISTER 



J(inuarv4, 1999 



1()4H 



PROPOSED RULES 



Notice is hereby given in accordance with G.S. I50B-21.2 
that the North Carolina Licensing Board for General 
Contractors intends to amend the rule cited as 21 NCAC 12 
. 0204. Notice of Rule-making Proceedings was published in the 
Register on September 15. 1998. 

Proposed Effective Date: .4ugust I, 2000 

Instructions on How to Demand a Public Hearing In order to 
demand a public hearing, a written request for public hearing 
must be submitted within 15 days of this publication to Mark D. 
Selph at the Board's office. The Board's address is PO Box 
17187. Raleigh. NC 27619. 

Reason for Proposed Action: The Rule adopted may 
potentially conflict with North Carolina law and the United 
States Constitution. 

Comment Procedures: Written comments may- be submitted 
to Mark D. Selph at the Board's office. The Board's address is 
PO Box 1718". Raleigh. NC 27619. Comments must be 
received by February 3. 1 999. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does not 
hcn-e a substantial economic impact of at least five million 
dollars lS5.000.000) in a 12-month period. 

SECTION .0200 - LICENSING REQUIREMENTS 

.0204 ELIGIBILITY 

(a) Limited License. The applicant for such a license must: 

( 1 ) Be entitled to be admitted to the examination given by 
the Board in light of the requirements set out in G.S. 
87-10 and Section .0400 of this Chapter; 

(2) Be tmancially stable to the extent that the total current 
assets of the applicant or the firm or corporation he 
represents exceed the total current liabilities by at 
least twelve thousand five hundred dollars 
($12,500.00): 

(3) SuccessfulK complete 70 percent of each part of the 
examination given the applicant b\ the Board dealing 
with the specified contracting classification chosen by 
the applicant. 

(b) Intermediate License. The applicant for such a license 
must: 

( 1 ) Be entitled to be admitted to the examination given b\ 
the Board in light of the requirements set out in G.S. 
87-10 and Section .0400 of this Chapter; 

(2) Be fmancialK stable to the extent that the total current 
assets of the applicant or the firm or corporation he 
represents exceed the total current liabilities by at 
least fiftv thousand dollars (S50.000.00) as reflected 
in an audited financial statement prepared b\ a 
certified public accountant; accountant or an 
independent accountant who is engaged in the public 
practice of accountancy^ 



(3) Successfully complete 70 percent of each part of the 
examination given the applicant b>' the Board dealing 
with the specified contracting classification chosen b\ 
the applicant. 

(c) Unlimited License. The applicant for such a license must: 

( 1 ) Be entitled to be admitted to the examination given b\ 
the Board in light of the requirements set out in G.S. 
87-10 and Section .0400 of this Chapter; 

(2 ) Be financialK stable to the extent that the total current 
assets of the applicant or the firm or corporation he 
represents exceed the total current liabilities by at 
least one hundred thousand dollars ($100,000.00) as 
reflected in an audited financial statement prepared by 
a certified public accountant; accountant or an 
independent accountant who is engaged in the public 
practice of accountancv; 

(3) Successfully complete 70 percent of each part of the 
examination given the applicant by the Board dealing 
with the specified contracting classification chosen by 
the applicant. 

(d) Should the financial statement submitted by the applicant 
fail to demonstrate the required level of working capital, the 
applicant shall obtain a suretv bond from a surety authorized to 
transact surety business in North Carolina pursuant to G.S. 58 
Article 7. 16. 21. or 22. The surety shall provide proof that it 
maintains a rating from A.M. Best, or its successor rating 
organization, of either Superior (A++ or A+) or Excellent (A or 
A-). The bond shall be continuous in form and shall be 
maintained in effect for as long as the applicant maintains a 
license to practice general contracting in North Carolina or until 
the applicant demonstrates the required level of working capital. 
Tfie application form and subsequent annual license renewal 
forms shall require proof of a surety bond meeting the 
requirements of this Rule. The applicant shall maintain the bond 
in the amount of fifty thousand dollars (S50.000.00) for a limited 
license, two hundred fifty thousand dollars ($250,000.00) for an 
intermediate license, and five hundred thousand dollars 
($500,000.00) for an unlimited license. The bond shall be for 
the benefit of any person who is damaged b\ an act or omission 
of the applicant constituting breach of a construction contract or 
breach of a contract for the furnishing of labor, materials, or 
professional services to construction undertaken b\ the 
applicant, or by an unlawful act or omission of the applicant in 
the performance of a construction contract. The bond required 
by this Rule shall be in addition to and not in lieu of an\ other 
bond required of the applicant 

by law. regulation, or any partv' to a contract with the applicant. 
Should the surety cancel the bond, the surety and the applicant 
both shall notify the Board immediateK in writing. If the 
applicant fails to provide written proof of financial responsibility 
in compliance with this Rule within 30 days of the bond's 
cancellation, then the applicant's license shall be suspended until 
written proof of compliance is provided. After a suspension of 
two \ears. the applicant shall fulfill all requirements of a new 
applicant for licensure. The practice of general contracting b\ 
an applicant whose license has been suspended pursuant to this 
Rule will subject the applicant to additional disciplinary action 
b\ the Board. 



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PROPOSED RULES 



(e) Reciprocity. If an applicant is licensed as a general 
contractor in another state, the Board, in its discretion, need not 
require the applicant to successfully complete the written 
examination as provided by G.S. 87-15.1. However, the 
applicant must comply with all other requirements of these rules 
to be eligible to be licensed in North Carolina as a general 
contractor. 

(f) Accounting and reporting standards. Working capital, 
balance sheet with current and fixed assets, current and long 
term liabilities, and other financial terminologies used herein 
shall be construed in accordance with those standards referred 
to as "generally accepted accounting principles" as promulgated 
by the Financial Accounting Standards Board, the American 
Institute of Certified Public Accountants, and, if applicable, 
through pronouncements of the Governmental Accounting 
Standards Board, or their predecessor organizations. An audited 
financial statement, an unqualified opinion, and other financial 
reporting terminologies used herein shall be construed in 
accordance with those standards referred to as "generally 
accepted auditing standards" as promulgated by the American 
Institute of Certified Public Accountants through 
pronouncements of the Auditing Standards Board. 

Authority G.S. 87-1; 87-10. 

CHAPTER 54 - LICENSING-BOARD OF 
PRACTICING PSYCHOLOGISTS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Psychology Board intends to 
adopt the rules cited as 21 NCAC 54 . 1611,'. 2 104, .2801-.2807; 
amend the rules cited as 21 NCAC 54 .2704. .2706. Notice of 
Rule-making Proceedings was published in the Register on 
September 2. 199"^. 

Proposed Effective Date: August 1. 2000 

A Public Hearing m/7/ be conducted at 1 .30 p.m. on February 
11, 1999 at the Radisson Inn, 415 Swing Road, Greensboro, 
North Carolina. 

Reason for Proposed Action: To define ancillary ser\'ices: to 
set continuing education requirements: to define academic 
requirements fiir health services provider certification: to clarify 
exemption for qualified members of other professional groups. 

Comment Procedures: .Any interested person may comment 
either orally at the public hearing or submit written comments 
addressed to Martha Storie, Executive Director NC Psychology 
Board. 895 State Farm Road Suite 101. Boone, NC 28607. 
Written comments must be received by 5:00 p.m. on Februan,' 
11, 1999. Any person wishing to speak at the public hearing is 
requested to notify the Board in writing no later than three days 
prior to the hearing date of their intent to comment orally at the 
public hearing. 



Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (S5. 000.000) in a 12-month period 

SECTION .1600 - GENERAL PROVISIONS 

.1611 PRACTICE BY OTHER PROFESSIONALS 

(a) Qualified members of other professional groups are 
individuals certified or licensed in North Carolina by another 
legislatively created occupational licensing board m the State of 
North Carolina, or who are recognized by such a board as 
qualified members of that professional group, to provide services 
as defined in G.S. 90-270.2(8) as the practice of psychology. 

(b) Credentials or claims to credentials which do not 
demonstrate that individuals are qualified members of other 
professional groups meeting the exemption of G.S. 90-270. 4(e) 
include the following: 

( 1 ) exemption from another profession's licensure or 
certification law; 

(2) a certificate or license issued in another jurisdiction; 

(3) a certificate or license issued by a national 
association; 

(4) membership jn a North Carolina or national 
organization; or 

(5) a job title. 

Authorit}' G.S 90-270.4(e): 90-270.9. 

SECTION 2100 - RENEWAL 

.2104 CONTINUING EDUCATION 

(a) The purpose of continuing education is to provide for the 
continuing professional education of all psychologists licensed 
by the North Carolina Psycholog>' Board consistent with the 
purpose of the Board which is to protect the public from the 
practice of psychology by unqualified persons and from 
unprofessional conduct by persons licensed to practice 
psychology. 

(b) Compliance with this Rule shall be a condition for license 
renewal. This Rule shall apply to all individuals licensed by the 
North Carolina Psychology Board who choose to renew their 
licenses in North Carolina. 

(c) Licensed Psychologists, holding either a provisional or 
permanent license, and Licensed Psychological Associates shall 
complete a minimum of 12 Continuing Professional Education 
Units (CPEUs) in each biennial renewal period as follows: 

(1) At least six CPEUs shall be in Category A activities. 
All 12 CPEUs may be in Category A acti\ities. 
Not more than six CPEUs ma\ be credited in 
Category B activities. 

The Board may mandate specific training for all 
psychologists or for targeted groups of psychologists 
in response to changes jn ethical and legal standards 
and to address areas of practice in which the Board 
determines that public protection js at risk. This 
training shall be consistent with and count touard 
meeting Category A requirements. Examples of 



(2J 
ID 

(4} 



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1050 



PROPOSED RULES 



mandated educational programs include updates on 
the North Carolina Psychology Practice Act and other 
legal requirements, supervision requirements, and 
updates on the American Psychological Association's 
Ethics Code. 

(d) Topics for Category A. Category B. and mandated 
educational programs shall fall within the folloyving areas: 

( 1 ) professional ethics and practice; 

(2) legal issues relevant to the practice of psychology: 

(3) risk management (e.g., liability, malpractice, high risk 
populations): or 

(4) training in the provision of Board mandated 
supervision. 

(e) Category A requirements shall be met through attendance 
at formally organized courses, seminars, workshops, 
symposiums, and postdoctoral institutes. Programs shall be pre- 
approved by the Board for Category A credit. The Chair of the 
Board shall ap point annually a Program Review Committee 
which shall review programs for pre-approval for Category A 
credit. Program sponsors and potential program participants 
may submit programs to the Board for pre-approval. A program 
submitted to the Board shall be reviewed within three months 
from the date on which all information requested by the Program 
Review Committee is received. 



Note: The North Carolina Psychological Association and Area 
Health Education Centers have agreed to Hst the Psychology 
Board's approval status of programs in their program 
advertisements. 

(f) Category B requirements shall be met through attendance 
at colloquia. presentations of invited speakers, grand rounds, and 
in-house seminars: attendance at programs offered at meetings 
of professional or scientific organizations which are not 
approved for Category A credit: and participation in formally 
organized study groups or journal clubs. 

(g) An individual licensed on or before October 1 . 2000. shall 
attest on the license renewal application for the 2002-2004 
biennial renewal period, and on each subsequent biennial 
renewal application, to having met the mandatory continuing 
education requirements specified in tliis Rule. An individual 
licensed after October I. 2000. shall attest on the second license 
renewal application following licensure, and on each subsequent 
biennial renewal application, to having met the mandatory 
continuing education requirements specified in tliis Rule. The 
licensee shall be required to maintain documentation of both 
Category A and Category B participation consistent with this 
Rule for a minimum of four years from the date of renewal of 
the license and shall provide the documentation within 30 davs 
after receiving written notification from the Board that the 
documentation is required. The Board shall randomly verify the 
documentation of required Continuing Professional Education 
Units for a percentage of licensees and shall routinely do so 
during the investigation of any complaints. 

Aiithohn-G.S. 90-2'0.9: 90-2W. 14(a)(2). 

SECTION .2700 - HEALTH SERVICES PROVIDER 
CERTIFICATION 



.2704 HSP-P REQUIREMENTS 

(a) To be certified as a health services provider psychologist 
(HSP-P). a licensed psychologist holding permanent North 
Carolina licensure shall be qualified by education as defined in 
Paragraph (b) of this Rule and shall have completed two years of 
supervised experience, of which at least one year shall be 
post-doctoral. These two years of experience shall meet the 
criteria specified in Paragraphs (c) and (d) of this Rule, or in 
Paragraph (e) of this Rule. An applicant shall submit a 
completed, notarized application form and provide 
documentation of meeting health services provider requirements. 

(b) An applicant shall demonstrate that he/she is qualified by 
education to provide health services by meeting one of the 
following criteria: 

( 1 ) is currently approved for listing, or is currently listed, 
in the National Register of Health Service Providers 
in Psychology; 

(2) is a diplomate in good standing of the American 
Board of Professional Psychology in Clinical 
Psychology, Counseling Psychology, or School 
Psychology; 

(3) is a graduate from a doctoral program which was 
accredited at the time of the applicant's graduation by 
the American Psychological Association in Clinical 
Psychology. Counseling Psychology. School 
Psychology, or Combined Professional-Scientific 
Psychology: or 

(4) has an academic foundation in the provision of health 
services as defined in Rule .2701(a) of this S e ction. 
Section which meets the following requirements: 
(A) The applicant's doctoral program, or formal 

postdoctoral program of re-specialization, in 
psvcholog^ shall be an organized training 
program which has established a clear intent, 
through the structure of the program and in 
institutional publications, to train individuals to 
provide health services in psychology as 
defined in G.S. 90-270.2(4) and Rule .2701(a) 
of this Section. 



(B] 



Within the applicant's doctoral training 
program, or formal postdoctoral program of re- 
specialization, in health services in psychologs. 
course work shall have been completed in the 
areas of assessment, diagnosis, intervention, 
and psvchopathologv. The applicant shall 
further establish that he or she lias completed 
relevant course work that has provided training 
in diagnosis. evaluation. treatment, 
remediation, or prevention of one or more of 
the following areas: 
(i) mental, emotional, and behavioral 



liij 

(iii) 
UvJ 



disorder, disability, and illness; 

substance abuse; 

habit and conduct disorder; or 



tQ 



psychological aspects of physical 
illness, a ccident, injury, and disability. 
Pursuant to final Board approval, an applicant 
shall be considered to have been trained in the 



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provision of health services in ps\cholog% if 
the applicant establishes that requirements set 
forth in Parts (b)(4)(A) and (b)(4)(B) of this 
Rule hav e been met through a doctoral 
program, or formal postdoctoral program of re- 
specialization, in any one of the following 
areas of specialization in psychology : applied 
behavior analysis in psychology, applied 
developmental psychology. clinical 

psychology. counseling psychology, 

rehabilitation psychology. or school 
psychology. 

(D) An applicant who holds a doctoral degree in 
psychology, who applies for licensure as a 
Licensed Psychologist, and yvho holds a 
master's or specialist degree in psychology that 
provides training in tlie provision of health 
services shall not be eligible for HSP-P 
certification rf the applicant's doctoral 
program, or formal postdoctoral re- 
specialization program, in psychology does not 
also provide trainin g in the provision ot' health 
services as set forth in Parts (b)(4)(A) and 
(b)(4)(B) of this Rule. If the applicant has a 
doctoral degree in an area of psychology that 
does not provide training in the provision of 
health services, that applicant shall not be 
eligible for HSP-P certification eyen if the 
applicant establishes that course yvork in the 
areas listed in Part (b)(4)(B) was completed or 
if thie applicant has completed an applied 
training experience (i.e.. practicum. internship . 
residency, postdoctoral felloyvship. etc.) in the 
provision ot' health services without having 
completed a planned and directed doctoral or 
formal postdoctoral training program in health 
services in psychology. 

(E) An applicant who has completed a doctoral 
program that establishes io institutional 
publications an intent to train individuals for 
careers in administration, research, teaching, 
academia. and other areas not inyolving 
training in the proyision of health services in 
psychology shall not be considered to have 
been provided an academic foundation in the 
provision of health services and shall not be 
approved for HSP-P certification. 

(F) Only that course work taken at an institution of 
higher education as defined in G.S. 90- 
270.2(5) shall be considered by the Board to 
establish that an applicant has an academic 
foundation in the provision of health services. 

(c) Except as provided in Paragraph (e) of this Rule, an 
applicant shall demonstrate one year of supervised experience 
yvhich meets the follow ing requirements for an organized health 
ser\ ices training program: 

( I ) The training shall be a planned and directed program 
in the provision of health seryices. in contrast to "on 



the Job" training, and shall proy ide the trainee ysith a 
planned, programmed sequence of training 
experience. 

(2) The training site shall have a written statement or 
brochure which describes its training program and is 
made available to prospecti\e trainees. 

(3) Trainees shall be designated as "interns," fellows." or 
"residents." or hold other designation which clearly 
indicates training status. 

(4) The training shall be completed within 24 months. 

(5) The training shall consist of at least 1500 hours of 
practice. 

(6) At least 25°o of the training shall be spent in the 
provision of direct health services, as defined in Rule 
.2701(a) of this Section, to patients or clients seeking 
assessment or treatment. 

(7) Up to 25" of the training may be comprised of 
research activities. 

(8) There shall be a minimum of two doctoralK trained 
licensed, certified, or license eligible psychologists at 
the training site as supervisors yvho have ongoing 
contact with the trainee. 

(9) The training shall be under the direction of a licensed, 
certified, or license eligible doctoralK trained 
psychologist who is on the staff of the training site. 
v\ho approves and monitors the training, who is 
familiar with the training site's purposes and 
functions, who has ongoing contact with the trainee, 
and who agrees to assume responsibility for the 
quality, suitability, and implementation of the training 
experience. 

(10) The training shall provide a minimum of tyvo hours 
per week of indiv idual face-to-face discussion of the 
trainee's practice, y\ith the specific intent of 
overseeing the health serv ices rendered by the trainee. 
Supervision may be proy ided in part by psychiatrists, 
social workers, or other mental health professionals 
qualified by the training site, but at least 50° o of 
superv ision shall be provided bv licensed, certified, or 
license-eligible doctorally trained psychologists, 

(11) In additional to individual supervision, the training 
site shall provide a minimum of two hours per week 
of instruction which ma\ be met by group 
supervision, assigned reading, seminars, and similarly 
constituted organized training experiences. 

This specified year of supervised experience may be obtained at 
a predoctoral level, provided that an additional year of 
supervised experience as defined in Paragraph (d) of this Rule 
is obtained at a post-doctoral level. Internships accepted for 
listing in the National Register of Health Service Providers in 
Psychology and internships accredited by the American 
Psychological Association in Clinical Psychology. Counseling 
Psychology, or School Psychology shall be deemed to meet the 
requirements in this Paragraph. 

(d) An applicant shall demonstrate one year of supervised 
experience which meets the following requirements: 

(I) The experience shall consist of a minimum of one 
calendar year and include 1500 hours of supervised 



13:13 



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1052 



PROPOSED RULES 



experience. 

(2) The experience shall be completed within a 
consecutive four-year period. 

(3) The supervision shall be for the direct provision of 
health services in psychology, as defined in Rule 
.2701(a) of this Section, by the applicant to 
individuals or groups of clients/patients. 

(4) At least one hour per week of formal, face-to-face, 
individual supervision shall have been provided, 
except that individual supervision provided up until 
January 1, 1996, may have been provided in two. 
two-hour sessions per month. 

(5) The supervisor shall have been an appropriately 
licensed or certified psychologist, whose license or 
certificate was in good standing, in the state where the 
practice occurred. 

(6) The supervisor, at the time of supervision, shall not 
have been in a dual relationship with the supervisee, 
e.g., spouse, other close relative, close personal 
friend, or therapist. 

This specified year of supervised experience may be obtained at 
a predoctoral level, provided that an additional year of 
supervised experience as defined in Paragraph (c) of this Rule is 
obtained at a post-doctoral level. 

(e) An applicant who holds a provisional license as a 
Licensed Psychologist in North Carolina on the effective date of 
this Rule shall not be required to have had one year of 
supervised experience which meets the requirements of an 
organized health services training program as specified in 
Paragraph (c) of this Rule, but shall have completed two years 
of supervised experience, of which at least one year shall be 
post-doctoral, as defined in Paragraph (d) of this Rule. 

(f) An applicant who documents that he/she meets any one of 
the following criteria shall be deemed to meet all requirements 
of this Rule for certification as a health services provider 
psychologist (HSP-P): 

( 1 ) is currently approved for listing, or is currently listed, 
in the National Register of Health Service Providers 
in Psychology; 

(2) is a diplomate in good standing of the American 
Board of Professional Psychology in Clinical 
Psychology, Counseling Psychology, or School 
Psychology; 

(3) is a graduate from a doctoral program which was 
accredited at the time of the applicant's graduation bv 
the American Psychological Association in Clinical 
Psychology, Counseling Psychology, School 
Psychology, or Combined Professional-Scientific 
Psychology and which included an internship 
accredited by the American Psychological 
Association, and who completes a postdoctoral year 
of supervised experience as defined in either 
Paragraph (c) or (d) of this Rule; 

(4) if applying before January 1 , 2001 , is a graduate from 
a doctoral program which was fulK accredited at the 
time of the applicant's graduation by the American 
Psychological Association in School Psvchology and 
which included an internship meeting the guidelines 



of the Council of Directors of School Psychology 
Programs as documented by the program chair, and 
who completes a postdoctoral year of supervised 
experience as defined in either Paragraph (c) or (d) of 
this Rule; or 

(5) is a graduate who received a doctoral degree prior to 
1979 from a program which included course work 
which demonstrates an academic foundation in the 
provision of health services as defined in Rule 
.2701(a) of this Section, and which included the 
equivalent of a one year supervised internship in an 
American Psychological Association accredited 
program providing health services, in a Veterans 
Administration setting providing health services, or at 
a site providing health services which was specifically 
acceptable to the applicant's doctoral training 
program, and who completes a postdoctoral year of 
supervised experience as defined in either Paragraph 
(c) or (d) of this Rule; or 

(6) is approved for licensure under senior psychologist 
requirements specified in 21 NCAC 54 .1707 and 
demonstrates that at least 25% of his/her qualifying 
practice has been in the provision of direct health 
services, as defined in Rule .2701(a) of this Section. 

(g) An applicant applying under Subparagraph (f)( 1 ) of this 
Rule, and who has not yet been approved for listing in the 
National Register of Health Service Providers in Psychology, 
shall be permitted to file an affidavit verifying that he/she 
qualifies for listing in the Register. Upon receipt of this 
affidavit, the Board may issue a health services provider 
certificate, conditioned upon receipt of a letter from the Register 
within 60 days of receipt of the affidavit which confirms 
approval for, or listing in, the Register. An extension of the 60 
days may be granted upon showing that additional time is needed 
for application review by the National Register of Health Service 
Providers. 

(h) An applicant for health services provider certification who 
knowingly provides false or fi-audulent information to the Board 
with respect to his/her application, or who fails to provide the 
notification from the National Register of Health Service 
Providers in Psychology where required, shall be subject to 
disciplinary action by the Board, including revocation of 
licensure and the health services provider certificate. 

Authority G.S. 90-270.9: 90-270.1 5(a){3); 90-270.1 5{a)(22): 
90-2 70. 20(b). 

.2706 HSP-PA REQUIREMENTS 

(a) To be certified as a health services provider psychologist 
psychological associate (HSP-PA). a North Carolina licensed 
psychological associate shall be qualified b\ education. An 
applicant shall submit a completed, notarized application form 
and provide documentation of meeting health services provider 
requirements. 

(b) An applicant shall demonstrate that he she holds a 
master's, specialist, or doctoral degree which provides an 
academic foundation in the provision of health services as 
defined in Rule .2701(a) of this S e ction. Section and which 



1053 



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13:13 



PROPOSED RULES 



meets the following requirements: 

( 1) The master's, specialist, or doctoral program in 
psycholop\ shall be an orpanized training program 
which has established a clear intent, through the 
structure of the program and in institutional 
publications, to train individuals to provide health 
services in psychology as defined in G.S. 90-270.2(4) 
and Rule .2701(a) of this Section. 

(2) Within the applicant's training program in health 
services in psychology, course work shall have been 
completed in the areas of assessment, diagnosis, 
intervention, and psvchopathologv. The applicant 
shall further establish that he or she has completed 
relevant course work that has provided training in 
diagnosis, evaluation, treatment, remediation, or 
prevention ot" one or more ot" the following areas: 
(A) mental, emotional, and behavioral disorder. 

disability, and illness; 

substance abuse; 

habit and conduct disorder; or 



ID 

m 



psychological aspects ot' physical illness, 
accident, injury, and disability. 

(3) Pursuant to final Board approval, an applicant shall be 
considered to have been trained in the provision of 
health services in psychology if the applicant 
establishes that requirements set forth in 
Subparagraphs (b)(1) and (b)(2) of this Rule have 
been met through a master's, specialist, or doctoral 
degree program in psychology in any one of the 
following areas of specialization in psychology: 
applied behavior analysis in psychology, applied 
developmental psychology, clinical psychology, 
counseling psychology, rehabilitation psychology, or 
school psychology. 

(4) If the applicant cannot establish that he or she has a 
master's, specialist, or doctoral degree in an area of 
psychology that provides training in the provision of 
health services, the applicant shall not be eligible for 
HSP-PA certification. This shall apply even if the 
applicant establishes that course work in the areas 
listed in Subparagraph (b)(2) of this Rule was 
completed or if the a pplicant has completed an 
applied training experience (i.e.. practicum. 
internship, residency, postdoctoral fellowship, etc.) in 
the provision of health services without having 
completed a planned and directed training program in 
health services fn psychology. 

(5) An applicant who has completed a program in 
psychology that establishes in institutional 
publications an intent to train individuals for careers 
in administration, research, teaching, academia. and 
other areas not involving training in the provision of 
health services in psychology shall not be considered 
to have been provided an academic foundation in the 
provision of health services and shall not be approved 
for HSP-PA certification. 

(6) Only course work taken at an institution of higher 
education as defined fn G.S. 90-270.2(5) shall be 



considered by the Board to establish that an applicant 

has an academic foundation in the provision of health 

services. 

(7) Psychological Associates who receive their degrees 

during or after 1997 shall document that their degree 

program included an internship, extemship. or 

practicum at a site providing health services which 

meets all the following criteria: 

f4-) £AJ The internship, extemship. or practicum shall 

have been in a planned and directed program of 

training in health services, in contrast to 

on-the-job training, and shall have prov ided the 

trainee with a planned and directed sequence of 

training integrated with the educational 

program in which the individual was enrolled. 

(3)tBj The internship, extemship. or practicum site 

shall have had a clearly designated and 

appropriately licensed psychologist who was 

responsible for the integrity and quality of the 

training program. 

(-3-) (CJ TypicalK. the intemship. extemship. or 

practicum shall have been comprised of the 

equivalent of at least one semester's training 

and shall have been a minimum of 12 weeks 

and 200 hours of supervised training. 

f4)(Dj The intemship. extemship. or practicum shall 

have had a written program description 

detailing its functioning and shall have been 

approved b\ the applicant's training program 

prior to its occurrence. 

(^(EJ The intemship. extemship. or practicum shall 

have provided a minimum of one hour per 

week of individual face-to-face, regularly 

scheduled supervision with the specific intent 

of overseeing the health services rendered by 

the trainee. 

f^(Fl At least 50% of the training shall have been 

spent in the provision of direct health services 

to patients or clients seeking assessment of 

treatment, and shall have been comprised of a 

range of assessment and treatment 

interventions. 

f7-) {G} Supervision may have been prov ided in part b\ 

psychiatrists, social workers, or other mental 

health professionals qualified by the training 

site, but at least 50° o of supervision shall have 

been provided by an appropriately licensed or 

certified psychologist or psvchological 

associate, or other psychologist v\ ho is exempt 

from licensure under the North Carolina 

Psychology Practice Act. 

f^iJTj Persons enrolled in the intemship. extemship 

or practicum shall have been designated as 

"intems. "extems". or "practicum students" or 

hold other designation which clearly indicated 

training status. 

(c) An applicant who is approved for licensure as a 

Psychological Associate under senior psychologist requirements 



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1054 



PROPOSED RULES 



specified in 2 1 NCAC 54 . 1 707 and demonstrates that at least 
25% of his/her qualifying practice has been in the provision of 
direct health services, as defined in Rule .2701(a) of this 
Section, shall be deemed to meet all requirements of this Rule 
for certification as a health services provider psychological 
associate (HSP-PA), 

Authority G.S. 90-270.9: 90-270. 13(c): 90-270.20(c). 

SECTION .2800 - ANCILLARY SERVICES 

.2801 SCOPE 

Licensed psychologists (provisional and permanent), licensed 
psvchological associates, temporary licensees, or qualified 
applicants for licensure may employ or supervise unlicensed 
individuals to provide clerical and administrative services to 
assist in the provision of psychological services to clients, 
patients, and their families. The psychologist shall retain full 
professional responsibility for the quality of the services 
rendered and for the effects of the services upon the client, 
patient, or other individuals. This responsibility for the quality 
of services and for the welfare of the client or patient shall be no 
different than if the psychologist had provided the services in 
person. TTie psychologist shall be the provider of psychological 
services and shall have face-to-face contact will aH patients, 
clients, or other recipients of services who are provided ancillan, 
services by unlicensed persons as part of the psychologist's 
services. 



seven years after the termination of the relationship and shall 
present the documentation to the Board upon written request. If 
the unlicensed individual js supervised by more than one 
psychologist, there shall be an appointed psychologist of record 
who shall have primary responsibility for the coordination of and 
provision of s ervices by the unlicensed individual. The 
psychologist of record shall have responsibility for record 
keeping with regard to the services of the unlicensed individual. 

(b) The psychologist shall be competent to render all ancillary 
services specified in Rule .2804(b) of ttiis Section that the 
employee or supervisee shall render, e xcept that clearly defined 
areas of an employee's or supervisee's supervision may be 
delegated to other psychologists affiliated with the employment 
setting whose competence in the delegated areas has been 
demonstrated by previous education, training, and experience. 

(c) A psychologist whose license has been revoked or 
suspended or who has otherwise been subject to disciplinary or 
remedial action by the Board pursuant to G.S. 90-270.15 shall 
not continue to employ or supervise unlicensed individuals and 
shall not initiate subsequent employee or supervisory 
relationships without the prior approval of tlie Board. The 
Board shall have the authority to restrict or revoke a 
psychologist's privilege to utilize unlicensed individuals to 
provide ancillary services if the Board finds that an unlicensed 
person in tjie psychologist's employment or under the 
psychologist's supervision has violated an\ provision of G.S. 
90-270. 1 5(a) which would otherwise apply to licensed 
individuals. 



Authoht\G.S. 90-270.9: 90-270.21. 



Author it\- G.S. 90-270.9: 90-2m21. 



.2802 TITLES 

Titles of individuals providing ancillary services shall not 
indicate either than these individuals are licensed or trained in 
psychology or that the individuals are providing services defined 
as the practice of ps\chology in G.S. 90-270.2(8). Unlicensed 
individuals shall not use any title incorporating the words 
"associate." "clinical." "counseling." "diagnostic." "e.xaminer." 
"psychologic." "psychological." "psychologist." "psychology." 
or derivatives of such. Examples of titles that unlicensed 
individuals may use include "aide," "assessment," "assistant," 
"behavioral," "evaluation," "testing," "technician," or derivatives 
of these titles. 



A uthorit^• G. S. 90-2 70. 9: 90-2 70. 2 1 . 



.2803 



EMPLOYMENT AND SUPERVISION OF 
UNLICENSED INDIVIDUALS 

(a) Any psychologist who employs or supervises unlicensed 
individuals who provide ancillary services as specified in Rule 
.2804(b) of this Section shall maintain documentation of the 
relationship between the psychologist and tlie unlicensed 
individual beginning v\ ith the date upon which the relationship 
is initiated. Documentation shall be in tlie form of a written 
agreement that is signed by both parties. Except when prevented 
from doing so by circumstances beyond the psychologist's 
control, the psychologist shall maintain documentation of the 
relationship with the unlicensed individual for a minimum of 



.2804 SERVICES APPROPRIATE FOR UNLICENSED 
INDIVIDUALS 

(a) Clerical functions requiring a minimum of judgment shall 
be deemed as appropriate activities in which unlicensed 
individuals may engage. Examples of these activities include 
responding to telephone inquiries, scheduling appointments, 
filing insurance claims, typing psychological reports, and 
completing data entry of test results after a patient or client has 
responded to such items as questionnaires, forms, etc. These 
activities shall be appropriate for ancillary services personnel to 
provide under the supervision of a psychologist. A psychologist 
who employs or supervises unlicensed individuals to provide the 
services described in this Paragraph shall otherwise be exempt 
from the requirements of Rule .2803(a) of this Section. 

(b) Tasks requiring technical skills and training but minimal 
judgment during execution shall be deemed as appropriate 
activities in which unlicensed individuals would be engaged. 
Such tasks are those for which training in tfie foundation of 
psychology based on academic preparation at ttie masters, 
specialist, or doctoral level of psychology would not be required. 
Examples of these activities include obtaining demographic 
histories; implementing biofeedback techniques; administering 
and scoring specifi c parts of psychological tests, including 
neuropsychological tests, which are scored on a pass/fail, 
multiple choice, or true/false basis, or for which scores are based 
on speed or quantity of performance; and implementing specific 
behavioral interventions that are part of a detailed treatment 



1055 



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13:13 



PROPOSED RULES 



plan. A psychologist may delegate such technical tasks to an 
unlicensed individual upon determining that the tasks can be 
performed adequately, given the client's or patient's 
characteristics and circumstances, in a manner consistent with 
the unlicensed individual's training and skills. 

Authority G.S. 90-2W.9: 90-270.21. 

.2805 SERVICES NOT APPROPRIATE FOR 
UNLICENSED INDIVIDUALS 

(a) Individuals providing ancillary services shall not engage 
in tasks involving judgment during the execution of those 
services when training in the foundation of psychology for the 
level of judgment is characteristically based on academic 
preparation at the masters, specialist, or doctoral level in 
psychology. Examples of these activities include administration 
of projective techniques; administration of individually 
administered intelligence tests; administration of other 
psychological tests in which the patient's or client's performance 
may alter the length of the protocol, require adjustment of the 
number of items administered, or require that a decision be made 
to probe a response of the patient or client; and all forms of 
diagnostic interviewing, counseling, and psychotherapy. 
Psychological services of the type noted in this Paragraph shall 
be provided only by psychologists licensed by the Board as 
either licensed psychologists (provisional or permanent) or 
licensed psychological associates or by qualified applicants and 
shall not be performed by unlicensed individuals. All 
psychological test results shall be interpreted to recipients of 
services or their duly designated representative(s) by licensed 
psychologists (provisional or permanent), licensed psychological 
associates, or qualified applicants. Interpretation of 
psychological test results by unlicensed individuals, other than 
qualified applicants, shall be prohibited under all circumstances. 

(b) Unlicensed individuals providing ancillary services who 
make record entries regarding services they provide must sign 
such entries and indicate their positions as providers of ancillary 
services. The psychologist shall ensure that reports, case notes, 
financial statements, and other records of service clearly identify 
whether the psychologist or the unlicensed individual was the 
direct provider of a specific service. When a psychological 
report contains information collected by a provider of ancillary 
services, the report shall either identify the information as that 



obtained from a person providing ancillary services or be 
countersigned by the person providing ancillary services. 

Authorities. 90-270.9: 90-270.21. 

.2806 SUPERVISION 

Any qualified psychologist who employs or super\ises 
individuals to provide ancillary services shall be accessible at all 
times, either on-site or through electronic communication, and 
shall be available to render assistance when needed to the 
unlicensed individual and patient or client, or shall have 
arranged for another qualified psychologist to be readily 
accessible in the absence of the supervising psychologist. The 
psychologist shall meet with all unlicensed individuals in an 
employer-employee or supenisor-supervisee relationship to the 
extent necessary to provide appropriate supervision for the 
activities in which the unlicensed individual is engaged. 

Authority G.S. 90-270.9: 90-270.21. 

.2807 QUALIFICATIONS AND TRAINING 

(a) Prior to the provision of ancillary services specified in 
Rule .2804 ot" thjs Section by an unlicensed individual, the 
psychologist supervising or employing the individual shall 
provide training in and establish that the individual has sufficient 
knowledge and understanding of confidentiality, exceptions to 
confidentiality including mandated reporting of suspected abuse 
or neglect, and professional ethics. Training in professional 
ethics shall include the Code of Conduct contained in the North 
Carolina Psychology Practice Act at G.S. 90-270. 15(a). 

(b) Any psychologist supervising or employing an unlicensed 
individual shall provide instruction in or establish that the 
individual shall have received training sufficient to perform the 
activities delegated to the unlicensed individual. 

(c) Unless provided prior approval by the Board, a 
psychologist may not employ or supervise individuals to provide 
ancillary services who have previousK' been licensed or certified 
to practice psychology who have relinquished their licenses or 
certification or who have had their licenses or certification 
restricted, suspended, or revoked by the Board in North Carolina 
or any other jurisdiction. 

Authority- G.S. 90-2-^0.9: 90-2'Q.21. 



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1056 



TEMPO RAR Y RULES 



The Codifier of Rules has entered the following temporaiy rule(s) in the North Carolina Administrative Code. Pursuant to G.S. 
150B-21. lie), publication of a temporary rule in the North Carolina Register ser\-es as a notice of rule-making proceedings 
unless this notice has been previously published by the agency. 



TITLE 1 - DEPARTMENT OF ADMINISTRATION 

Rule-making Agency: Department of Administration 

Rule Citation: / NCAC 40.0103, .0201- .0204 

Effective Date: November 25. 1998 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. 115C-366 

Reason for Proposed Action: The General .Assembly amended 
G.S. 115C-566 dealing with driving eligibility certificates in the 
last session to include all educational programs that a court has 
found to meet the requirements of the Compulsoiy Attendance 
Lcm prior to July 1, 1998, under those schools that the Division 
of Nonpublic Education must make rules for in the area of 
driving eligibility certificates. The General Assembly cited their 
action as a recent act that allowed the Department of 
Administration to adopt temporaiy rules to cover these 
programs. 

Comment Procedures: .411 persons wishing to comment on 
these proposed rules may do so by sending their written 
comments to R. Glen Peterson. General Counsel. Department of 

Administration, 116 West Jones Street. Raleigh. North Carolina 
27603-8003. 

CHAPTER 40 - NONPUBLIC EDUCATION 

SECTION .0100 - GENERAL PROVISIONS 

.0103 DEFINITIONS 

The following definitions shall apply throughout this Chapter: 

(1) "Conventional nonpublic school" means a school 
operating under either Part 1 or Part 2 of Article 39, 
G.S. 115C. 

(2) "Division" means the Division of Nonpublic 
Education, except where otherwise identified. 

(3) "Educational program" means an alternative 
academic program of instruction found bv a court 
prior to Julv 1. 1998. to comply with the Compulsory 
Attendance Law. Part 1 of Article 26. G.S. 1 15C. 

(*4(4j "Home school" means a nonpublic school operating 
underPart3of Article 39. G.S. 115C. 

History Note: A uthority G.S. 11 5C-54 ' through 1 I5C-566: 
Temporary Adoption Eff. August 4. 1998: 
Temporarx- Amendment Eff. November 25. 1998. 

SECTION .0200 - DRIVING ELIGIBILITY 
CERTIFICATES 



(2) 



(3) 



(4) 



(b) 



.0201 DEFINITIONS 

For the purposes of G.S. 20-11. G.S. 20-13.2(cl) and G.S. 
115C-566. the following definitions shall appK : 

(I ) "High school diploma or its equivalent" means and 
includes the General Equivalency Diploma and the 
adult high school diploma. 

"Making progress toward obtaining a high school 
diploma or its equivalent" means that the student must 
meet standards established bv the administrator, or the 
administrator's designee, in the case of a conventional 
nonpublic school or bv' the person who provides the 
academic instruction in the case of a home school. 
school or an educational program. 
"Substantial hardship" means a demonstrable burden 
on the student or the student's family as evidenced by 
circumstances such as the following: 
(a) The parent/guardian is unable to drive due to 
illness or other impairment and the student is 
the only person of driving age in the 
household. 

The student requires transportation to and from 
a job that is necessary to the welfare of the 
student's family and the student is unable to 
obtain transportation by any means other than 
driving. 

The student has been unable to attend a 
conventional nonpublic school due to 
documented medical reasons, but the student is 
demonstrating the ability to maintain progress 
toward obtaining a high school diploma or its 
equivalent. 
A "student who cannot make progress toward 
obtaining a high school diploma or its equivalent" 
shall mean a student who has been identified by the 
administrator, or the administrator's designee, in the 
case of a conventional nonpublic school or by the 
person who prov ides the academic instruction in the 
case of a home school, school or an educational 
program, as not having the capacity to meet the 
requirements for a high school diploma or its 
equivalent due to a disability. 

Histoty Note: Authorit}- G.S. 115C-566: 
Temporaiy .Adoption Eff. .August 4. 1998: 
Temporan- .Amendment Eff. November 25. 1998. 



(c) 



.0202 ISSUANCE OF DRIVING ELIGIBILITY 
CERTIFICATES 

(a) Each conventional nonpublic school and school, home 
school and educational program shall be responsible for the 
issuance of driving eligibility certificates on forms which must 
be supplied onlv by the Division. 

(b) Before anv conventional nonpublic school or home school 



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can issue a driving eiigibilit\ certificate, that school must have 
on file with the Division a current!) valid Notice of Intent to 
Operate and must be in compliance with all laws and regulations 
applicable to conventional nonpublic schools or home schools 
which enroll students subject to conipulsor\ attendance laws. 
Once the school is in compliance with such laws and regulations 
as appK to it, the appropriate forms may be requested from, and 
supplied by. the Division. 

(c) Before an\ educational program can issue a driving 
eligibility certificate, that program must have on file with the 
Division: 

( 1 ) A letter stating the name of the educational program. 
its address and telephone number, and contact person; 
and 

(2) Legal documentation in the form of a certified court 
order or judgment that the program was found to be in 
compliance with the Compulsory Attendance Law. 
Part i of Article 26, OS, 1 1 5C. prior to Jufy L 1998. 
Once the educational program js m compliance with 
such laws and regulations as apply to it. the 
appropriate forms ma\ be requested from, and 
supplied by, the Division. 

{€) (dj Notwithstanding 1 NCAC 40 .0202(b). all nonpublic 
schools enrolling only students who are age 16 or 17 may not 
request driving eligibility certificate forms from the Division 
until after the school's currently valid Notice of Intent to 
Operate has been on file with the Division for at least six 
calendar months. This provision shall not appK in the case of 
any student that is newly resident in the State of North Carolina 
within the 30 days immediately preceding his request for a 
driving eligibility certificate from a school affected by this 
provision. 

fd) (e) A nonpublic school student under the age of 1 8 who 
wishes to obtain a limited learner's permit, a limited provisional 
license or a full provisional license under G.S. 20-1 1 must first 
request and obtain a driving eligibility certificate signed by the 
administrator, or the administrator's designee, in the case of a 
conventional nonpublic school or the person who provides the 
academic instruction in the case of a home s chool, school or an 
educational program. 

fe^ (jQ Before a nonpublic school student is eligible to receive 
a driving eligibility certificate, the student must be properly 
enrolled in a nonpublic school which is meeting all the 
appropriate requirements of Article 39 of G.S. 1 I5C or in an 
educational program at the time the certificate is issued and meet 
one of the following requirements: 

( 1 ) The student is making progress toward obtaining a 
high school diploma or its equivalent. 

(2) The student will have a substantial hardship placed on 
the student or the student's family if the certificate is 
not issued. 

(3) The student is a student who cannot make progress 
toward obtaining a high school diploma or its 
equivalent. 

{^ tgj If a student is denied a certificate, the chief 
administrator of the nonpublic school or the person who 
provides the academic instruction m the case of an educational 
program shall inform the student of the school's or the 



program's decision and the availability and details of the 
school's or program's appeals process. 

History Note: Authority G.S. II5C-566: 
Temporary Adoption Efj. August 4, 1 998: 
Temporary- Amended Efl'. November 25, 1998. 

.0203 REVOCATION OF DRIVING ELIGIBILITY 
CERTIFICATES 

(a) Each nonpublic school and educational program shall 
revoke a driving eligibility certificate held by one of its students, 
no matter whether it was issued by that school or program or not: 

( 1 ) when the student fails to meet the requirements for the 
certificate set out in 1 NCAC 40 .0202; or 

(2) when the student is no longer enrolled in the school or 
program and does not possess a high school diploma 
or its equivalent upon the student's removal from the 
schools's or program's rolls, if the student will not be 
enrolled in another school (public, conventional 
nonpublic, home s chool school, educational program 
or community college). 

(b) Upon revocation of a certificate, the chief administrator 
of the school or program shall send written notification of the 
revocation to the Division uithin five calendar days of the 
revocation, unless the student protests the decision. If the 
Appeals Committee upholds the school's or program's decision 
to revoke the certificate, the notification to the Division yvill be 
made within five days from the school's or program's receipt of 
the committee's decision. 

(c) The notification to the Division shall include: 

( 1 ) The student's legal name (first, middle and last name 
as on the student's birth certificate); 

(2) The student's social security number; 

(3) The student's residence address (including street, city 
and zip code); 

(4) The student's date of birth; 

( 5 ) The student ' s gender; 

(6) The student's race; 

(7) The student's learner's permit or driver's license 
number; 

(8) The name of the parent/guardian with whom the 
student is living; 

(9) A statement of the reasons for the re\ocation of the 
certificate; 

(10) The date of the student's ineligibility or removal from 
the school's or program's rolls; 

(11) The type of nonpublic school, whether conventional 
or home s chool; school, or educational program; 

(12) The name of the nonpublic school; school or 
educational program; 

(13) The county in which the nonpublic school or 
educational program is located; 

(14) The name of the chief administrator of the nonpublic 
s choo l , school or educational program. 

(d) Within five calendar da>s of the Division's receipt of the 
written notification of revocation from the nonpublic school. 
school or educational program, the Director of the Division or 
the Director's designee, shall infonn the North Carolina Di\ ision 



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1058 



TEMPOI14RY RULES 



of Motor Vehicles of the revocation. 

(e) If a student's certificate is revoked, the chief administrator 
of the nonpubhc school or educational program shall inform the 
student of the school's or program's decision and the availability 
and details of the school's or program's appeals process. 

History- Note: Authority G.S. 115C-566; 
Temporary Adoption Eff. August 4, 1998: 
Temporar\- Amendment Eff. November 25. 1998. 



.0204 STUDENT APPEALS PROCESS 

(a) Each conventional nonpublic school and educational 
program that enrolls students that are at least 15 years of age 
shall establish a Driving Eligibility Certificate Appeals 
Committee to receive and act upon student protests that a driving 
eligibility certificate was improperly denied or revoked. All 
student protests shall be made within five days of the school's or 
program's decision and directed to the chief administrator of the 
conventional nonpublic school, school or educational program. 
The Appeals Committee shall: 

( 1 ) Be appointed by and serve at the pleasure of the 
administrator of the conventional nonpublic s chool. 
school or educational program, or the administrator's 
designee; and 

(2) Consist of at least three members, each of which shall 
be a member of the school's or program's governing 
board, administration or staff, or a parent guardian 
with a child currently enrolled in the school, school or 
program. 

(b) The Division shall establish a Home Schools Driving 
Eligibility Certificate Appeals Committee exclusively to receive 
and act upon student protests that a driving eligibilitv' certificate 
was improperly denied or revoked by a home school. All home 
school student protests shall be made within five days of the 
school's decision and directed to the Director of the Division or 
the Director's designee, at Division of Nonpublic Education, 
Department of Administration, 530 North Wilmington Street, 
Raleigh, North Carolina 27604-1198. The Home Schools 
Driving Eligibility Certificate Appeals Committee shall: 

( 1 ) Be appointed by, and serve on a voluntary basis at the 
pleasure of, the Director of the Division or the 
Director's designee; and 

(2) Consist of at least three members, each being the 
administrator of a home school currently operating 
under Part 3, Article 39. G.S. I15C. The members 
shall not receive per diem or any other type of 
compensation for their service. The Director, or the 
Director's designee, shall appoint a chairperson from 
the committee's membership. The chairperson shall 
then direct the decision-making work of the 
committee. 

(c) All Driving Eligibilit)' Certificate Appeals Committees 
shall: 

( 1 ) consider the written protest of the student as to why 
the driving eligibility certificate was improperly 
denied or revoked: 

(2) decide the protest based on whether the requirements 
for the certificate were met or whether the certificate 



was properly revoked; 
(3) render its decision within 30 calendar days of receipt 
of the written protest from the student, and promptly 
notify the student and the chief administrator of the 
school or program of the decision, 
(d) The decision of the appropriate appeals committee shall 
be final. 

His toty Note: Author it}- G.S. 115C-566: 
Temporary Adoption Eff. August 5. 1998: 
Temporaiy Amendment Eff. November 25. 1998. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Rule-making Agency: Commission for Health Sen-ices 

Rule Citation: 15A NCAC 19A .0502 

Effective Date: December 1. 1998 

Findings Reviewed and Approved by: Beecher R. Gra\- 

Authority for the rule-making: G.S. 130A-152 

Reason for Proposed Action: The purpose of this action: To 
change the reporting requirements as stated in 15A NCAC 19A 
.0502. This will ensure that private providers of immunization 
services to children have a fair and reasonable mechanism in 
which to accurately report doses administered information to 
the Immunization Section for the purpose of vaccine 
accountability. Immunization projects hcn-e the primaiy 
responsibility to develop and maintain vaccine accountability- 
systems to ensure that vaccine loss and wastage is minimized. 
The existing rules were developed in 1993 when the Universal 
Childhood I'accine Distribution Program (UCl'DP) began 
providing state-supplied vaccine to less than 400 providers 
across the state. One of the many goals of the UCVDP was to 
encourage more pediatricians and family physicians to 
immunize children in their medical care home. At that time 65- 
70% of childhood immunizations were being administered in 
local county health departments. By 1998 the private sector was 
administering 70 percent of the childhood vaccines. Since that 
time, four ne^v vaccines/vaccitK combinations have been added 
to the Recommended Childhood Immunization Schedule, making 
the current reporting mechanism cumbersome for the providers 
of immunization sen-ices. In addition, with the number of 
childhood immunization providers enrolled in the UCVDP 
hm-ing nearly tripled over the past four years, reporting of doses 
administered information on the 5 th of each month by providers 
does not allow adequate reporting time. The existing rule states 
that a provider who fails to report by the fifth of each month 
Pn'ice in one year is no lo'nger eligible to receive state-supplied 
vaccine. A temporary rule needs to be adopted in order to 
impose upon immunization program providers reasottable 
reporting requirements with respect to immunization activities 



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TEMPORARY RULES 



and appropriate sanctions for failure to comply. Greater 
compliance and accountability by the Immunization Program 
providers and the Immunization Section will be achieved. 

Comment Procedures: Comments, statements, data and other 
information may be submitted in writing within 60 da}\s after the 
date of publication of this issue in the North Carolina Register 
Copies of the proposed rules and information packages may he 
obtained by contacting the Immunization Program at (91 9) "15- 
6 "64. H ritten comments may be submitted to Barbara Laymon. 
Immunization Section. Division of Public Health. PC) Box 
29597. Raleigh. NC 27626. 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER I9A - COMMUNICABLE DISEASE 
CONTROL 



SECTION .0500 



.0502 



PURCHASE AND DISTRIBUTION 
OF VACCINE 



VACCINE FOR PROVIDERS OTHER THAN 
LOCAL HEALTH DEPARTMENTS 

(a) The Department of Environment. Health, and Natural 
Resources shall provide vaccines required b\ law free of charge 
to the following providers for administration to individuals who 
need vaccines to meet the requirements of G.S.130A-I52. 130- 
155. 1 and 15ANCAC 19A.0401: 

( 1 ) CommunitN. migrant, and rural health centers; 

(2) Colleges and universities for students: and 

(3) Physicians and other health care providers. 

(b) Upon request of the Department, required vaccines ma\ be 
distributed bv local health departments operating as agents of the 
State to providers listed in Subparagraphsta)( 1 ). (2) and (3) of 
this Rule. 

(c) Providers authorized in Paragraph (a) of this Rule shall be 
eligible to receive free vaccines from the Department only if they 
sign an agreement with the Department. This agreement will be 
prepared by the Immunization Section and will require the 
provider to: 

( 1 ) Charge no more for a single dose of vaccine than the 
rate established b\ the Health Care Financing 
Administration (HCFA): Charge no more than double 
the HCFA rate as a reasonable fee for the 
administration of two or more vaccines given at a 
single visit. The rate established by HCFA is 
published in the Federal Register (59FR50235). and 
is incorporated herein b\ reference along v\ith anv 
subsequent amendments and editions. TTie HCFA rate 
ma\ be inspected at the Immunization Section of the 
Department of Environment. Health, and Natural 
Resources. Copies may be obtained from the 
Immunization Section at no charge: 

(2) Provide all vaccines needed during a \isit unless a 
specific contraindication exists to one or more of the 
vaccines: 

(3) Charge no office fee in addition to an administration 
fee for an immunization-onK \ isit: 



(4) Agree not to charge an administration fee to an 
individual who states that the\ are unable to pa\ : 

(5) Impose no condition as a prerequisite to receiving 
vaccine: 

(6) R e port in writing or e l e ctronically th e name and social 
s e curitN numb e r of th e p e r s on to w hom vaccin e was 
admin i st e r e d, th e dat e of admin i stration, th e typ e and 
dos e of vaccin e ( s ) admini s t e r e d and th e provider 
numb e r of th e ph> s ician or clinic administ e ring the 
vaccin e to th e Immunization S e ction, at l e a s t monthlx 
by the fifth day of e ach month: The providers shall 
submit a monthly doses administered report by the 
tenth of each month electronically through the North 
Carolina Immunization Reaistrv or on a form 
provided bv the Immunization Section. 

(7) Report adverse reactions through the Vaccine Adverse 
Event Reporting System ( VAERS): 

(8) Provide the latest edition of the applicable Important 
Information Statement (IIS), or Vaccine Information 
Statement (VIS) to the parent, guardian, or person 
standing in loco parentis for each dose of vaccine 
administered: document this action v\ithin the 
patient's permanent medical record; retain the 
documentation for a period of 1 years follov\ ing the 
end of the calendar year in which the vaccine dose 
was administered, or for 10 years following the 
recipient's age of majority, whichever is longer: upon 
request, furnish copies of the documentation to the 
local health department or the Department. Keep a 
record of the vaccine manufacturer, lot number, and 
date of administration for each dose of vaccine 
administered: 

(9) Allow periodic inspection of their vaccine supplies 
and records by the Immunization Section: and 

(10) CompK with the rules of this Section. 

(d) A provider who fa i l s to subm i t tim e ly and accurat e 
r e ports, as r e quir e d in Paragrap h C o f this Rul e , twic e in any 12 
month p e riod s hall hav e th e ir e ligibi l ity to r e c e iv e s tat e vaccin e 
suspended for a p e riod of on e y e ar — A provid e r who fai l s to 
comply with any of th e oth e r r e quir e m e nt s of this Rul e may hav e 
th ei r e ligibility s usp e nd e d by th e D e partment for a period 
d e t e miin e d by th e D e partm e nt and ma> be subject to an action 
brought pur s uant to G.S. 130A 27. All s u s p e nsion s of e ligibility 
shall b e in accordanc e with G.S. 130A 23. A pro\ider who fails 
to submit timeK and accurate reports as required each month 
shall have vaccine shipments withheld until that month's report 
is received bv the Immunization Section. 

Histoiy Note: Filed as a Temporaiy Amendment Eff. October 

1 . 1994. for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Filed as a Temporaiy .Amendment Eff .August 26. 1992. for a 

period 180 days or until the permanent rule becomes effective. 

whichever is sooner: 

Filed as a Temporaiy .Amendment Eff Februaiy I. 1988. for a 

period of 1 80 days to expire on July 29. 1988: 

Filed as a Temporaiy Rule Eff Februaiy 1 . 198' for a period of 

120 days to expire on .\fay 31. 198": 



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1060 



TEMPORAR Y RULES 



Filed as Temporary Rule Eff. October 5. 1986 for a period of 

120 days to expire on February 1. 1987: 

Authority G.S. 130A-152: 130A-155.1: 130A-433: S.L 1986. c. 

1008, s'2: S.L 1987. c. 215. s. 7; 

Eff. March 1. 1987; 

Amended Eff. October 1. 1995: January' I. 1995: January 4. 

1994:Januar}'4. 1993: 

Temporary' .Amendment Eff. December ]_^ 1998. 



TITLE 16 - DEPARTMENT OF PUBLIC 
EDUCATION 

Rule-making Agency: State Board of Education 

Rule Citation: 16 NCAC 6B .0108 

Effective Date: December 15. 1998 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 115C-522.1(e) 

Reason for Proposed Action: The General .Assembly directed 
the State Board to adopt rules to exempt supplies, equipment. 



and materials related to student transportation from the law 
allowing purchasing flexibility. G.S. 115C-522.1. 

Comment Procedures: Questions or written comments 
regarding this matter may be directed to Harry E. Wilson. Rule- 
Making Coordinator 2086 Education Building. 301 N. 
Wilmington Street. Raleigh. NC 27601-2825. (919) 715-1310. 

CHAPTER 6 - ELEMENTARY AND SECONDARY 
EDUCATION 

SUBCHAPTER 6B - STUDENT TRANSPORTATION 
SYSTEM 

SECTION .0100 - STUDENT TRANSPORTATION 
SYSTEM 

.0108 PURCHASING FLEXIBILITY EXEMPTION 

All supplies, equipment, and materials related to student 
transportation shall be exempted from the purchasing flexibilit>' 
granted to LEAs under G.S. 1 1 5C-522. 1 . 

History Note: Authority G.S 115C-522.1(e); 
Temporar\- Adoption Eff. December 15. 1998. 



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RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursda\'. January 21. 19Q8. 
10:00 a.m. . at 1307 Glenwood Ave., Assembly Room. Raleigh. NC. An\one wishing to submit vsritten comment on an\ rule 
before the Commission should submit those comments to the RRC staff, the agenc\. and the indi\ idual Commissioners b\ 
Monday. January 18, 1998, at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Re\ieyy 



Commission at 919-733-2721. Anyone wishing to address the Commission should notify' the RRC staff and the agency at 
least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood, Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

Da\ id Tyvidd\ 



Appointed by House 

Paul Powell. Chainnan 

Anita White. 2""^ Vice Chairman 

Mark Garside 

Steve Rader 

George Robinson 



JanuarN '. 


!1. 1999 


FebruarN 


18. 1999 


March 18. 1999 


April 15, 


1999 


May 20, 


1999 


June 17. 


1999 



RULES REVIEW COMMISSION MEETING DATES 



July 15. 1999 
August 19, 1999 
September 16. 1999 
October 21. 1999 
November 18, 1999 
December 16, 1999 



RULES REVIEW COMMISSION 

November 19, 1998 
MINUTES 

The Rules Review Commission met on November 19, 1998. in the AssembK Room of the Methodist Building. 1307 Glenyyood 
Avenue, Raleigh. North Carolina. Commissioners in attendance were Chairman Paul Powell. David R. Tyviddy, Jim R. Funderburk. 
Anita A. White. Mark P. Garside. and George S. Robinson (by telephone). 

Staff members present yyere: Joseph J. DeLuca, Staff Director; Bobb\ Bryan, Rules Revieyv Specialist; and Sands Webster. 

The folloyy ing people attended; 



David Brown 
Nancy Scott 
Juanita Gaskill 
Aaron Padgett 
Jim Hall 
RMFry 
Dedra Alston 
Dyvight Lancaster 
Shirley Bullard 
Jerry Perkins 
Ed Buchan 
Marc Lodge 
Ellie Sprenkel 
Shamese Ransome 
Theresa Shackelford 
Janice Fain 



DENR/Child Day Care 

Attorney General 

DENR/Marine Fisheries 

DENR Radiation Protection 

DEN R, Child Day Care 

DENR/'Radiation Protection 

DENR 

DENR Water Quality 

DHHS 

DENR/State Revolving Fund 

DENR/DEH 

DHHS 

Insurance 

DHHS/Social Services 

insurance 

DHHS Child Dav Care 



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1062 



RULES REVIEW COMMISSION 



Anna Carter DHHS/Child Day Care 

Susan Randolph DHHS 

Thomas Allen DENR/Water Quality 

T. Reeder DENR/Water Quality 

Roberta Oeuliette NC Appraisal Board 

Mel Black NC Appraisal Board 

Valerie Chaffin Hunton & Williams 

McKinley Wooten Attorney General 

Frank Crawley Attorney General 

W R Hoke Electrical Contractors 

Denise Stanford NC Board of Pharmacy 

APPROVAL OF MINUTES 

The meeting was called to order at 10:05 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the October 22, 1998 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

4 NCAC 3B .0101, .0102, and .0103: COMMERCE/Banking Commission - No response was received from the agency on these 
rules. 

4 NCAC 3H .0002: COMMERCE/Banking Commission - No response was received from the agency on this rule. 

10 NCAC 3R .6112: DHHS/Medical Care Commission - No response was received from the agency on this rule. 

12 NCAC 9B .0301 and .0603: JUSTICE/Criminal Justice Education & Training Standards Commission - The rewritten rule 
submitted for .0301 was objected to by the Commission because (d) still requires instructors to meet any continuing education courses 
"deemed necessary and appropriate by the Commission." The deletion of (b) was approved by the Commission. The rewritten rule 
submitted for .0603 was approved by the Commission contingent upon receiving the technical change. The change was subsequently 
received. 

1 5 A NCAC 1 OF .030 1 : DENR/Wildlife Resources Commission - The rewritten rule submitted by the agency was approved by the 
Commission. 

15A NCAC 13B .1624: DENR/Commission for Health Services - The rewritten rule submitted by the agency was approved by the 
Commission. 

15A NCAC 16A .0101: DENR/Commission for Health Services - The repeal submitted by the agency was approved by the 
Commission. 

15A NCAC ISA .2522, .2537, .2804, .2808, .2827, and .2833: DENR/ Commission for Health Services - The rewritten rules 
submitted by the agency were approved by the Commission with the exception of .2804 which was objected to by the Commission. 
It is still unclear what sources of potentially hazardous food the day care centers are required to use and how the\ are to identify such 
sources. 

LOG OF FILINGS 

Chairman Powell presided over the review of the log and all rules were unanimously approved with the following exceptions: 

10 NCAC 3U .0305. and .2805: DHHS/Child Care Commission - The Commission objected to .0305 and .2805 due to ambiguity. 
It is not clear how the compliance history ratings are determined. 

10 NCAC 3U .1601: DHHS/Child Care Commission - The Commission objected to .1601 due to ambiguity. As written. .1601 
appears to apply to all centers, but the section title implies that it onl\ applies to programs seeking to be recognized as meeting 
enhanced standards. It is not clear to whom the .1600 rules apply. 

10 NCAC 3U .2806: DHHS/Child Care Commission - The Commission objected to .2806 due to ambiguity. In (b)(2). (c)(2), and 



1063 NORTH CAROLINA REGISTER Januan 4, 1999 13:13 



RULES REVIEW COMMISSION 



(d)(2), it is not clear what constitutes a "nationally recognized" accrediting organization. 

10 NCAC 3U .2810: DHHS/Child Care Commission - The Commission objected to .2810 due to ambiguity. In (c). it is not clear 
what standards the division will use in approving individuals to perform rating scale assessments. 

10 NCAC 20C .0206: DHHS/Division of Vocational Rehabilitation Services - The Commission objected to this rule due to lack of 
statutory authority and ambiguity. In (I) there is no authority for allowing the waiver provision without specific guidelines. "[G]ood 
cause" is not specific. It is also unclear whether the unit manager may refuse to approve the waiver if "good cause" (once it is 
specified) is shown. This may simply be a requirement that the waiver be in writing and that the unit manager be the decision maker. 

10 NCAC 41E. G, R, S and T: DHHS/Social Services Commission - These rules were withdrawn b\ the agenc). 
Commissioner White recused herself from the Depaitment of Insurance rules. 

1 1 NCAC 8 .0912 - INSURANCE Manufactured Housing Board: The Commission objected to this rule due to lack of statuton. 
authorit)'. In (Ol*^)- there is no authority for including questions about federal laws and rules on the examination. There is also no 
authorit) for the exemption in (I). G.S. 143-143.1 1(h) requires a person to pass an examination in order to obtain a license. 

12 NCAC 7D .1201. and .1202: JUSTICE/NC Private Protective Services Board - The Commission objected to the .1200 rules due 
to lack of statutory authority. There is no authority for setting requirements for instructors of instructors. G.S. 74C- 13(h) and (1) 
require trainers to be certified but there is no authority for those training them to be. 

12 NCAC 7D .1301, .1302, .1303, .1304, .1305, .1306. and .1307: JUSTICE-'NC Private Protective Services Board - The 
Commission objected to each of the .1300 rules due to lack of statutorv authority and also to .1301 and .1302 due to lack of necessity 
and to .1304 and .1305 due to ambiguity. There is no authorirv cited for requiring continuing education for licensees. ConverseK 
G.S. 74C-9(0 allows renewal upon payment of the proper fee and evidence of insurance. In addition, .1301 is not necessary because 
it has no requirements. In .1302, the term "accredited sponsor" is not used in the rules and thus does not need defining. In .1304(c) 
and .1305. it is not clear what standards the Board will use in determining if a course will be sanctioned. 

I5A NCAC IN .0403: DENR - The Commission objected to this rule due to ambiguitv. In ( 1 ). it is not clear what standards the 
division will use in requiring business plan submittal. 

1 5 A NCAC IN .0604: DENR - The Commission objected to this rule due to ambiguity. The rule states that points ma\ be awarded 
in both Items (1) and (2), but Item (2) states that points may be awarded if not awarded in (1). This is contradictorv and thus 
ambiguous. 

1 5A NCAC IN .0701 : DENR - The commission objected to this rule due to ambiguity. In (c)(4). it is not clear uhat standards the 
division will use in setting capacity development requirements. 

15A NCAC IN .0703: DENR - The Commission objected to this rule due to ambiguity. In ( 1), it is not clear what standards the 
receiving agency (Division of Environmental Health) will use in approving loan commitment decreases. 

15A NCAC lO: DENR - These rules were withdrawn by the agencv'. 

15A NCAC 2D .1208: DENR/Environmental Management Commission - The Commission objected to this rule due to ambiguity. 
In (a)(3)(A)(ii), it is not clear what standards the Administrator vsill use in waiving requirements. 

15A NCAC 3P .0202: DENR/Marine Fisheries Commission - The Commission objected to this rule due to ambiguity . It is unclear 
what constitutes "undisputed facts" in the context of a request for a declarator\' ruling in (b), (b)( 1 ). (d), (0( 1 ), and (g)(3). 

15A NCAC 8G .0401. .0402. .0403. .0404. .0405. .0406. .0407. and .0409: DENR/Water Pollution Control S> stems Operators 
Certification Commission - The Commission objected to .0401 through .0409 due to lack of statutorv authority and ambiguity. It is 
unclear what standards the Commission will use for approving the training programs in (b)( 1 ). If the standards are not in the rules 
there is no authority to set those standards outside rulemaking. In .0409. it is also unclear what standards the Commission will use 
in determining whether to require training. This appears to be a slight variation on the waiver theme, but that is not abundantK clear 
to this re\ iewer. 

15A NCAC 8G .0505 and .0802: DENR/'Water Pollution Control S\ stems Operators Certification Commission - The Commission 



13:13 NORTH CAROLINA REGISTER January 4, 1999 1064 



R ULES RE VIE W COMMISSION 



objected to .0505 and .0802 due to ambiguit). In .0505(d) the first sentence seems to say that all scores are final and will not be 
changed. The last sentence states that exams shall be regraded if an "error is found in the examination." The rule is not clear as to 
what is going on. Does it mean that grades will not be changed if the error is that a correct answer was not properly credited but will 
be changed if the error was in the question itself? In .0802 the rule is unclear about the delegation of authority; the roles of the 
Commission, chairman, and advisory committee; and the appellate path to follow. 

ISA NCAC 8G .0902: DENRyWater Pollution Control Systems Operators Certification Commission - The Commission objected 
.0902 due to lack of statutory authority. There is no authority to set reporting requirements outside rulemaking as set out in (6). 

1 5 A NCAC 8G . 1 GO I : DENR/Water Pollution Control Systems Operators Certification Commission - This rule was withdrawn by 
the agency. 

I5A NCAC 8G .1 102; DENRAVater Pollution Control Systems Operators Certification Commission - This rule was withdrawn by 
the agency. 

21 NCAC 46 .1612: NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authority. There is no 
authority cited for the late renewal fee. G.S. I50B-I9(5) is not sufficient authority. Note that the agency did not attempt to 
specifically characterize the late renewal fee as any of the five listed general fees allowed by 1508-19(5). 

2 1 NCAC 46 .2306: NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authority. This rule does 
not appear to be consistent with the statute. It seems to expand the universe of those to whom the prescription information is 
available. 

21 NCAC 46 .2502: NC Board of Pharmacy - The Commission objected to .2502 due to lack of statutory authority and ambiguity. 
In (g) there appears to be an exception or waiver of the rule forbidding serving as pharmacist-manager at more than one pharmacy. 
However there are no specific guidelines for the Board's consideration. Paragraphs (k) - (m) are ambiguous. Paragraph (1) especialK 
is not clear about what the Board shall or shall not do under the circumstances. These paragraphs should be reviewed and perhaps 
rewritten to make clear what danger the Board is addressing; the solution it requires; and the need to be sure that the rules do not 
conflict with, or mislead someone about the effect of, the conduct of a civil lawsuit in any action over the dispensing or delivery of 
a product by a pharmacist. 

21 NCAC 46 .2506: NC Board of Pharmacy - This rule was withdrawn by the agency. 

2 1 NCAC 46 .2609; NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authority and ambiguity. 
There does not appear to be an\ authorit\ cited to allow the board to test whether such a supplier has "a working knowledge of the 
services provided and how they relate to each patient's goals." The authority cited is limited to require these providers to deliver the 
equipment in a certain manner. As long as that is done, i.e., the rules for dispensing or delivering this equipment are followed, then 
the supplier's knowledge is irrelevant and bcNond the scope of the board's authority to test. In the alternative, even if the board has 
the authority to test such knowledge, what constitutes this "working knowledge" is vague and undefined. In addition the Commission 
is not sure about the necessity for this rule. The only authority cited for this rule refers to dispensing or delivering "devices" or 
"medical equipment" including certain rehabilitation equipment. It is unclear to me whether this rule purports to regulate more than 
the items mentioned in the definition of medical equipment. As long as it does not there is no problem with the authority. But then 
it is unclear what the interplay is between this rule and the next one for your review covering all medical equipment. This latter 
problem is probably easily addressed by adding a provision that this rule, and not .2611. covers the delivery of rehabilitation 
equipment, or specifying what parts of .261 1 also apply. But until that is done, this rule is unclear to me. 

21 NCAC 46 .261 1 : NC Board of Pharmacy - The Commission objected to this rule due to lack of statutory authority and ambiguity. 
This rule presents one of the same problems as the previous rule. There does not appear to be any authority cited to allow the board 
to test whether such a supplier has "a working knowledge of the services provided and how they relate to each patient's goals." The 
authority cited is limited to require these providers to deliver the equipment in a certain manner. As long as that is done, i.e., the rules 
for dispensing or delivering this equipment are followed, then the supplier's knowledge is irrelevant and be\ond the scope of the 
board's authority to test. In the alternative, even if the board has the authority to test such knowledge, what constitutes this "working 
knowledge" is vague and undefined. 

21 NCAC 57A .0305: NC Appraisal Board - The Commission objected to this rule due to lack of statutory authority and necessity. 
There is no authority to require people not to talk about the exam's contents. The exam would appear to be a public record and as 
such available to the public. Even if it were not a public record it would seem that it would not have been the legislature's intent to 
allow the agenc\ to forbid this activity and thus is unnecessary. Finally, it certainly appears to be a first amendment violation. 



1065 NORTH CAROLINA REGISTER Januan 4. 1999 13:13 



RULES REVIEW COMMISSION 



although that is not a basis for objecting to it. However it would be a good reason for the agenc\ to withdravs it. Note that the agencN' 
has extremely broad authority to adopt rules concerning the qualifications of its licensees, but this is not a qualification rule. The 
authority would lie in the legislature's broad grant of power to adopt rules "reasonabK necessarv to implement, administer, and 
enforce the provisions of this Chapter..." (G.S. 93E-1-10) including the administration of exams (G.S. 93E-l-6(c)). 

COMMISSION PROCEDURES AND OTHER MATTERS 

The President Pro Tempore of the Senate has appointed two new Commissioners - John Arrowwood and Laura Devan. Teresa 
Smallwood was reappointed. No appointments have been made by the Speaker. Elections will be postponed until the January 
meeting. 

The next meeting will be on December 17. 1998. 

The meeting adjourned at 1 1 :55 a.m. 

Respectfully submitted, 
Sandy Webster 



13:13 NORTH CAROLINA REGISTER January 4, 1999 1066 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Lcm' Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the 
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of 
Administrative Hearings. (919) 733-2698. Also, the Contested Case Decisions are available on the Internet at the following 
address: http://www.state.nc.us/OAH/hearings/decision/caseindex.htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief .Administrative Law Judge 

JULIAN MANN. Ill 

Senior Administrative Law Judge 

FRED G. MORRISON JR. 

ADMINISTR.4TIVE LAW JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Dolores O. Smith 



AGENCY 

.ADMINISTRATION 

Occaneechi Band of the Saponi Nation v NC Comm of Indian Affairs 
Carlton L Coleman \ Administration, Division of Purchase and Contract 

ALCOHOLIC BE\ ERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission v Kenneth .lerome 

Alcoholic Beverage Control Commission v Jesse Jacob Jo\ner, Jr 

Alcoholic Beverage Control Commission v Trade Oil Compan\, Inc 

Alcoholic Beverage Control Commission v Pantana Bobs. Inc 

Alcoholic Beverage Control Comm v Partnership T/A C & J's Shipwreck 

Alcoholic Beverage Control Comm v Harold Webster Hadnott 

Alcoholic Beverage Control Commission v Axis Entertainment 

Sokha Huor Ramadneh v .Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v Delores Williams Alnaqib 

Alcoholic Beverage Control Commission v .Axis Entertainment 

Alcoholic Beverage Control Commission v James Aubrev Stephenson 

Alcoholic Be\erage Control Commission v Bridgette Dee Williams 

Alcoholic Beverage Control Commission v Robert Lee. Inc 

Alcoholic Beverage Control Comm v Partnership. T/.A Varietv Pic t'p #21 

Tarus Jackson v Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm v Simple Elegance Restaurants, Inc 

Alcoholic Beverage Control Comm v Daniel Hinton Green 

Alcoholic Beverage Control Comm \ Zaheer .Ahmad Bajwa 

Alcoholic Beverage Control Comm v Jerald Taft Howell. Jr 

Alton Ollivierra Perrv v Alcoholic Beverage Control Commission 

BOARD OF CONTRACTORS 

Heritage Pomte Builders. Inc & Patrick Hannon v Bd of Contractors 

CRIME ( ONTROL AND PI BLIC SAFETY 

Loretta Battle v Crime Victims Compensation Commission 
Cynthia Austin v Crime Victims Compensation Commission 
Marcella Skaggs v Crime Victims Compensation Commission 
Talmadge E McHenrv v Crime Victims Compensation Commission 
Linda Caldwell Wiggins v Crime Victims Compensation Commission 
Kenneth T Lvlle v Crime Victims Compensation Commission 



CASE 




DATE OF 


PI BLISHED DECISION 


NVMBER 


AU 


DECISION 


REGISTER CITATION 


96 DOA 0006 


Smith 


12/07/98 


13 13 NCR 1075 


98DOA 1016 


Phipps 


12/16/98 




97 ABC 1205 


Phipps 


07/23/98 




97 ABC 1438 


Phipps 


06/19/98 




98 ABC 0033 


Reillv 


08/21/98 




98 ABC 0293 


Reilllv 


09/17/98 


13.11 NCR 933 


98 ABC 0296 


Morrison 


08/19/98 




98 ABC 0324 


Smith 


12/02/98 




98 ABC 0357'' 


Reillv 


07/02/98 




98 ABC 0382 


Smith 


06/30/98 


13 03 NCR 350 


98 ABC 0392 


Chess 


07/30/98 




98 ABC 0401*"' 


Reillv 


07/02/98 




98 ABC 0494 


Chess 


09/01/98 




98 ABC 0501 


Reillv 


08/11/98 




98 ABC 0518 


Grav 


08/11/98 




98 ABC 0714 


Morrison 


10/09/98 




98 ABC 0768 


Smith 


07/13/98 




98 ABC 0850 


Phipps 


10/26/98 




98 ABC 0889 


Morrison 


11/06/98 




98 ABC 0960 


Owens 


10/30/98 




98 ABC 1171 


Smith 


12/03/98 




98 ABC 1298 


Owens 


11/23/98 




97 LBC 0243 


Phipps 


08/17/98 




97 CPS 0654 


Grav 


08/10/98 




97CPS 1499 


Reillv 


08/12/98 


13 05 NCR 533 


98 CPS 0065 


Owens 


06/05/98 




98 CPS 01 16 


Grav 


06/24/98 




98 CPS 01 53 


Chess 


08/27/98 




98 CPS 01 76 


Reillv 


07/06/98 





1067 



NORTH CAROLINA REGISTER 



Januan' 4, 1999 



13:13 



CONTESTED CASE DECISIONS 



AGENCY 

Shirley Henrvhand v Crime Victims Compensation Commission 
Brenda Jean Thomas v Crime Victims Compensation Commission 
Tare\ton 1- Johnson v Crime Victims Compensation Commission 
Mia Thompson-Clark \ Crime Victims Compensation Commission 
Godfrey Akenabor v Crime Victims Compensation Commission 
Vahne H Thompson \ Crime Victims Compensation Commission 
Rufus K Williams V Depanment ol Crime Control & Public Safety 
Faye E Powell v Crime Victims Compensation Commission 
Hubert Lee Grant v Crime Victims Compensation Commission 
Mary Elizabeth Troutman v Crime Victims Compensation Comm 
Brenda H Alston v Crime Victims Compensation Commission 
Shirley P Chen v Crime Victims Compensation Commission 

ENGINEERS AND SIRVE^ ORS. BOARD OF EXAMINERS FOR 

Thomas A Truelove. Jr , PE v Bd /Examiners/Engineers and Surveyors 

ENMRONMENT AND NATIRAI RESOURCES 

l.adane Williamson and Odell Decarol Williamson \ DENR 
Teresa Hetlin v Department of Environment and Natural Resources 
Ronald Prater v Department of Environment and Natural Resources 
James F Smith v Depanment of Environment and Natural Resources 
William Hickman v Department of Environment and Natural Resources 
Hickors Alliance v Department of Environment and Natural Resources 
and 

Godfrey Lumber Company. Inc 
John M Silvia V Department of Environment and Natural Resources 
Godfrey Lumber Company. Inc v Depl /En\ ironment &. Natural Resources 
and 

Hickory Alliance 
Gregory B Jackson. Brenda R Jackson v Greene Cty HIth Depl . ENR 
Robert G GotT. Sr v Departmentof Environment and Natural Resources 
Scotland Water. Cedar Circle v Environment and Natural Resources 
Womble & Company V Dept of Environment and Natural Resources 
Eric Glenn Harrison v Environment and Natural Resources 
Robert G GotT. Sr v Departmentof Environment and Natural Resources 
Mid South Water Systems. Inc v Environment and Natural Resources 
Wilbur E Earp V Department of Environment and Natural Resources 
Norell Bahrs v Caneret Ct\ Health Dept . DENR 
Charles Davis \ Department of Environment and Natural Resources 
JC Fau V Department of Environment and Natural Resources 
Hugh & Bonnie Mills v Dept of Environment and Natural Resources 
Don W Hunt v Halifax County Health Department 

Division of Air Quality 

Sebring Dev . Patrick C'ueen/John Amirante v DENR. An Quality 

Division of Coastal Management 

Preston Warren v Di\ ision of Coastal Management. Wilmington. NC 
Marion T Noe \ DHNR. Division of Coastal Management 

Division of Environmental Health 

Gerald P Sigal v DENR. Division of Environmental Health 

Division of Environmental Management 

Save Our Rivers. Inc . et al \ Town of Highlands. EHNR. En\ Mgmt . 

William W Cobey. Jr. Secretary 
US Dept of the Interior Nat'l Park Svce v Environmental Mgmt Comm 

Division of Marine Fisheries 

Lady LaShanda Melvin Brxant v EHNR. Division of Marine Fisheries 

Gerald Moore, et al v DENR. Division of Marine Fisheries 

Division of Solid Haste Management 

Steve .Aldridgc. et al v DENR. Division of Solid Waste Management 

Division of Hater Quality 

Raymond L Martin v DENR. Division of Water Quality 

Worsley Oil Companies, inc v DENR. DWQ. Groundwater Section 

Silver Bullet. Inc v DENR. Division of Water Quality 

HEALTH AND HIMAN SERVICES 

Stanley C Ochulo v OtT /Administrative Hearings. Mr R Marcus Lodge 
Oliver C Johnson. Hazel T Johnson v Health and Human Services 
Louise Streater v Health and Human Services 



CASE 




DATE OF 


PI BLISHED DEC ISION 


MMBER 


AU 


DECISION 


REGISTER CITATION 


98 CPS 0263 


Morrison 


08/11/98 






98CPS0314 


Morrison 


08/11/98 






98 CPS 0327 


Reilly 


09/02/98 






98 CPS 0349 


Chess 


05/14/98 






98 CPS 0427 


Owens 


10/30/98 


13 12NCR 


1015 


98 CPS 0674 


Morrison 


11/18/98 






98 CPS 0676 


Morrison 


10/23/98 






98 CPS 0808 


Owens 


08/28/98 






98 CPS 0839 


Morrison 


10/21/98 


13 10 NCR 


853 


98 CPS 0901 


Smith 


11/12/98 






98 CPS 0952 


Phipps 


11/10/98 






98 CPS 1015 


Phipps 


09/17/98 






98 ELS 0047 


Mann 


11/12/98 


13 12 NCR 


1035 


96EHR 1926 


Gray 


09/01/98 


13 07 NCR 


609 


97 EHR 0409 


Morrison 


07/29/98 






97 EHR 045 1 


Reilly 


07/02/98 






97 EHR 1 365 


Chess 


07/17/98 






97 EHR 1388 


Grav 


11/06/98 


13 II NCR 


928 


97 EHR 1607 


ReilK 


07/17/98 






97 EHR 1646 


Chess 


06/03/98 






97 EHR 1676 


ReilK 


07/17/98 






98 EHR 0042 


Reilly 


07/02/98 






98 EHR 0072*-' 


Gray 


06/25/98 






98 EHR 0236 


Smith 


06/09/98 






98 EHR 0345 


Chess 


11/05/98 






98 EHR 0373 


Reilly 


08/28/98 






98 EHR 0448*- 


Gra\ 


06/25/98 






98 EHR 0548 


Gra\ 


12/02/98 






98 EHR 0606 


Smith 


10/21/98 






98 EHR 0884 


Owens 


11/02/98 






98 EHR 0890 


Owens 


11/09/98 






98 EHR 0957 


Gray 


12/11/98 






98 EHR 1090 


Phipps 


12/08/98 






98 EHR 1285 


Gray 


12/17/98 






98 EHR 0926 


Phipps 


12/11/98 






98EHR0I77 


Phipps 


10/05/98 






98 EHR 0976 


Smith 


12/02/98 






98 EHR 005 1 


Smith 


1 0/02/98 






91 EHR(L377 


Gray 


07/30/98 






98 EHR 04 10 


Smith 


08/20/98 


13 06 NCR 


578 


97 EHR 1459 


Grav 


07/20/98 






98 EHR 0322 


Owens 


10/08/98 


13 09 NCR 


797 


98 EHR 0665 


Chess 


09/09/98 


13 07 NCR 


617 


98 EHR 0590 


Grav 


09/21/98 






98 EHR 0735 


Chess 


08/24/98 






98 EHR 0931 


Chess 


08/20/98 






98DHR002I 


Reilly 


06/24/98 






98 DHR 0090 


Gray 


07/08/98 






98DHR0196 


Gray 


06/03/98 







13:13 



NORTH CAROLINA REGISTER 



January 4, 1999 



1068 



CONTESTED CASE DECISIONS 



AGENCY 

Richard E Lawrence. Rebecca A Lawience v Health and Human Services 

John David Brinson v Department of Human Resources 

Stephanie Wade v Department of Heahh and Human Services 

Carolyn L Freeman \ Department of Human Resources 

Otis L Mack. Jr v Offlceof Administrative Hearings 

Christopher Germano. Lee Germano v Department of Health 

Carol and Conrad Kunkel v Department of Human Services 

E Jean Woods v EDS ■ Medicaid 

Bemadette Anderson v Department of Health & Human Services 

Chervl Lynn Staton v Department of Health & Human Services 

Marv Barrier v Administrative Hearing 

Division of Child Development 

DulatowTi Preshvlenan Children's Ctr v DHHS. Child Development 
Cassandra Myers v Division of Child Development 
Dulatown Presbyterian Children Ctr v DHR. Child Development 
Dora's Child Development Center v Mecklenburg Ct\ DSS. and DHR 

Division of Facility Services 

Pearlie W Lavvson v DHHS. Facility Svcs . Health Care Personnel Reg 
Annie K Morgan v Health & Human Services . Facilitv Services 
Mooresville Hospital Mgmt Associates. Inc d/b/a Lake Norman Regional 

Medical Center v DHR. Facility Services, Certificate of Need Section 
and 

Autumn Corporation and McKinley V Jumey 
Warren Moore & Catherine Moore v DFIR. Div of Facility Services 
Constellation Health Services. Inc and Constellation Senior Services. 

Inc v DHR, Facility Services. Group Care Licensure Section 
and 

Diversified Health Group. LLC and The Innovative Health Group. Inc 
Dialysis Care of NC. LLC. d/b/a Dialysis Care ofRovvan Countv 

V DHR. Division of Facility Services. Certificate of Need Section 

V Biomedical Applications of NC. Inc d/b/a BMA of Kannapolis d/b/a 
Metrolina Kidney Center of Kannapolis (Lessee) and Metrolma Nephrology 
Associates. PA (Lessor) 

Robin Annette Reavis v Health and Human Svcs . Div of Facility Svcs 
Jennifer Blofeld v DHHS. Facility Svcs . Health Care Personnel Registry 
Sunlite Retirement Home. Winnie Jane Johnson v DHR. Facilitv Services 
Helen Shokoti v Health and Human Services. Div of Facility Services 
Ann Davis Rest Home v Group Care Licensure Section 
Diane Lingard v DHR. Facility Svcs. Health Care Personnel Reg 
Kimberly Annette Smith Hull v DHHS. Division of Facility Services 
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimington, 

Inc . and New Hanover Health Care Center. L L C v DHHS. Div of 

Facilitv Services. Certificate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates. LLC. Columbia 

Cape Fear Healthcare System. Limited Partnership. Living Centers 

Southeast. Inc . Lutheran Retirement Center-Wilmmgton Inc . and 

New Hanover Health Care Center LLC 
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimmgton. 

Inc . and New Hanover Health Care Center, L L C v DHHS. Div of 

Facility Services. Certificate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates. LLC. Columbia 

Cape Fear Healthcare System. Limited Partnership. Living Centers 

Southeast. Inc . Lutheran Retirement Center-Wilmington Inc . and 

New Hanover Health Care Center LLC 
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimington. 

Inc . and New Hanover Health Care Center. LLC v DHHS. Div of 

Facilitv Services. Certificate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates, LLC, Columbia 

Cape Fear Healthcare System. Limited Partnership. Living Centers 

Southeast. Inc . Lutheran Retirement Center-Wilmington Inc . and 

New Hanover Health Care Center LLC 
Deborah Ann Holt v DHHS. Division of Facility Services 
Tern Michelle Tyler v Health & Human Svcs. Div of Facility Services 
Dons Jones Holmes v DHHS. Facility Svcs. Health Care Personnel Reg 
Annie K Morgan v Health & Human Services . Facilitv Services 
Shirlev Bowling v DHHS. Facility Services. Health Care Personnel Reg 
Johnnie E Williams v DHHS. Division of Facility Services 
Christy Jeton Hall v DHHS, Division of Facility Services 
Judith Mav Gale v DHHS. Division of Facilitv Services 



CASE 




DATE OF 


Nl'MBER 


KLS 


DECISION 


98 DHR 0209 


Phipps 


07/15/98 


98 DHR 0369 


Owens 


08/17/98 


98 DHR 0666 


Reilly 


08/19/98 


98 DHR 0721 


Gray 


08/05/98 


98 DHR 0729 


Phipps 


09/09/98 


98 DHR 0780 


Owens 


07/28/98 


98 DHR 1047 


Smith 


12/04/98 


98 DHR 1118 


Grav 


10/26/98 


98 DHR 1257 


Morrison 


12/11/98 


98 DHR 1259 


Smith 


11/30/98 


98 DHR 1287 


Chess 


11/19/98 


98 DHR 0654 


Grav 


08/06/98 


98 DHR 0948 


Owens 


09/03/98 


98 DHR 1112 


Morrison 


10/16/98 


98 DHR 1184 


Phipps 


09/25/98 


97 DHR 1034 


Becton 


07/30/98 


97 DHR 1046'" 


Phipps 


07/23/98 


97 DHR 1209 


Reillv 


06/23/98 



PI BLISHED DECISION 
REGISTER CITATION 



97 DHR 1279 
97 DHR I 529 



97 DHR I 588 



Mann 
Grav 



Phipps 



97 DHR 1672 


Reillv 


98 DHR 0096 


Grav 


98 DHR 0124 


Phipps 


98 DHR 0173 


Chess 


98 DHR 0197 


Phipps 


98 DHR 0214 


Becton 


98 DHR 0239 


Phipps 


98 DHR 0244*" 


Phipps 



98 DHR 0245*'* Phipps 



; DHR 0247* 



Phipps 



09/08/98 
06/24/98 



08/31/98 



08/12/98 
08/21/98 
06/11/98 
08/26/98 
06/23/98 
06/22/98 
06/23/98 
11/24/98 



11/24/98 



11/24/98 



98 DHR 0348 


Phipps 


06/22/98 


98 DHR 0458 


Grav 


08/21/98 


98 DHR 0463 


Grav 


08/21/98 


98 DHR 0496*' 


Phipps 


07/23/98 


98 DHR 0547 


Grav 


11/09/98 


98 DHR 0639 


Reillv 


07/02/98 


98 DHR 0706 


Grav 


10/12/98 


98 DHR 0739 


Owens 


12/16/98 



1312NCR 1018 



I3I2NCR 1018 



13 12 NCR 1018 



1069 



NORTH CAROLINA REGISTER 



Januarv 4, 1999 



13:13 



CONTESTED CASE DECISIONS 



AGENCY 

Latonia Denise Thomas v DHHS. Division of Facilitv Services 
Tracev Deirde Galloway v DHHS. Facility Svcs . Health Care Per Reg 
Happ\ Dans Home. Gladys Cooke v Facility Svcs . Group Care Lie Sect 
Rose Mane Hadley v DHHS, Division of Facility Services 
Bridgette Taylor v Nurse Aide I Program. DFS 

Division of Medical Assistance 

Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Medical Ctr. 
and Harry Mahannah. M D \ DHHS. Division of Medical Assistance 
Isaiah Smith. Jr. hy/through his Guardian. Lawrence E Thompson, Ml 

V DHHS. Division of Medical Assistance 
Alic F Schneider Julia R Hammonds v DHHS, Medical Assistance 

Division of Social Sen'ices 

William & Costal Steaklev v DHHS. Division of Social Senices 
Raji Abdus-Salaam v Department of Human Resources, DSS-DCA 

Chit J Support Enforcement Section 
Robert H Black v Guilford Countv Child Support Enforcement 
Dorman E Drake v Depanment of Human Resources 
Garry R McNeill v Department of Human Resources 
Robert Alan Davis v Department of Human Resources 
Michael W White v Depanment of Human Resources 
Troy R Emmons. Jr v Department of Human Resources 
Manin A Pike v Depanment of Human Resources 
Man. Putnam Avery v DSS. Durham County Child Support Enforcement 
Anthonv B GritTin v Department of Human Resources 
Gilbert G Gray v Depanment of Human Resources 
Jimmv Dorsey v Depanment of Human Resources 
Herbert Leon Sellers v Depanment of Human Resources 
Gregory Boren v Department of Human Resources 
David W Davis v Department of Human Resources 
Dale W Hutchinson v Depanment of Human Resources 
Kelvin Cherrs v Depanment of Human Resources 
Joe A Lynch v Depanment of Human Resources 
Gary W Wamplerv Department of Human Resources 
Kenneth Eugene Scott v Depanment of Human Resources 
Mark Owens Fnnk v Depanment of Human Resources 
JefTers Lee Graves v Department of Human Resources 
Donald L Can. Jr v Depanment of Human Resources 
Mar\'m Diggs v Department of Human Resources 
Michael Patrick Dyme v Depanment of Health & Human Services 
Paula C Freeman V Depanment of Health & Human Services 
Sherman L Arnold Sr v Depanment of Health & Human Services 
Dennis Lee McNeill v Depanment of Human Resources 
Byron O Ashby I! v Department of Human Resources 
Hubert L Morrison v Depanment of Human Resources 
Robert Alan Davis v Department of Human Resources 
Larry S Robinson v Child Support Enforcement Agency 
Darryl C. Thompson v Depanment of Health & Human Services 
DarrylC Thompson v Depanment of Health & Human Services 
Michael J Burgess v Department of Human Resources 
Michael Anthony Hill v Depanment of Human Resources 
Joseph L Hill V Depanment of Human Resources 
Michael A Wilder v Department of Human Resources 
Billv Anthony Jr \ Department of Human Resources 
James B Benson \ Department of Human Resources 
Lawrence Wilkes v Depanment of Human Resources 
Alton D Bagley V Depanment of Human Resources 
Bemel B Berry Jr v Depanment of Human Resources 
Darryl Simpkins v Depanment of Health & Human Services 
Anthonv Montgomerv v Department of Human Resources 
Temace Joan Ness v Department of Human Resources 
Joseph Gerard McPhillips v Department of Human Resources 
Terrv Letterman v Depanment of Human Resources 
William E Mines V Depanment of Human Resources 
Christopher .Alan v Depanment of Human Resources 
Annette Chipman v Department of Human Resources 
Paul J Moblev.Jr v Depanment of Human Resources 
Alvin G Piper v Depanment of Health & Human Services 
Robert A Sherer v Depanment of Human Resources 
Rodney A Momson v Depanment of Human Resources 
Gregorv Andre Brown \ Department of Health & Human Services 
Rodger Hazen II v Department of Human Resources 



CASE 




DATE OF 


PI BLISHED DECISION 


.MMBER 


AU 


DECISION 


REGISTER CITATION 


98 DHR 0809 


Gray 


10/23/98 




98 DHR 0824 


Gray 


09/24/98 




98 DHR 0885 


Owens 


11/19/98 




98 DHR 0970 


Smith 


10/08/98 




98 DHR 1283 


Mann 


12/14/98 




97 DHR 0621 


Smith 


07/08/98 




98 DHR 0273 


Gray 


12/07/98 




98 DHR 0994 


Momson 


10/29/98 




98 DHR 0076 


Gray 


07/20/98 




98 DHR 0771 


Owens 


07/30/98 




96CRA 1548 


Mann 


10/09/98 




96CRA1717 


Smith 


08/25/98 




96 CRA 1 743 


Reilly 


10/22/98 




96CRA I78l»" 


Phipps 


08/20/98 




96 CRA 1784 


Gray 


09/25/98 




96 CRA 1 798 


ReilK 


08/25/98 




96 CRA 1814 


Chess 


09/24/98 




96 CRA 1 849 


Momson 


09/01/98 




96 CRA 1855 


Gray 


12/18/98 




96 CRA 1858 


Momson 


10/08/98 




96 CRA 1862 


Smith 


12/15/98 




96 CRA 1932 


Smith 


11/06/98 




96 CRA 1945 


Gray 


12/14/98 




96 CRA 1976 


Smith 


11/06/98 




96 CRA 1981 


Mann 


08/26/98 




97 CRA 0026 


Gray 


12/14/98 




97 CRA 0045 


Phipps 


10/09/98 




97 CRA 0187 


Smith 


12/15/98 




97 CRA 1232 


Chess 


11/06/98 




97 CRA 1524 


Mann 


10/09/98 




98 CRA 01 37 


Becton 


06/23/98 




98 CRA 0545 


ReilK 


06/08/98 




98 CRA 0588 


Reillv 


06/24/98 




98 CRA 0787 


Gray 


09/17/98 




98 CRA 1117 


Smith 


12/18/98 




98 CRA 1 1 52 


Mann 


10/28/98 




96 CSE 1 305 


Gray 


06/22/98 




96CSE1435 


Mann 


07/15/98 




96 CSE 1649 


Reillv 


08/12/98 




96 CSE 1780*" 


Phipps 


08/20/98 




96 CSE 1848 


Gray 


11/05/98 




96 CSE 1854»" 


Chess 


09/01/98 




96 CSE 1902*" 


Chess 


09/01/98 




96 CSE 1989 


Mann 


12/10/98 




96 CSE 2028 


Mann 


08/26/98 




97 CSE 0624 


Chess 


11/06/98 




97 CSE 1301 


Chess 


07/17/98 




97 CSE 1393 


Reillv 


06/24/98 




97 CSE 1399 


Gray 


12/14/98 




97 CSE 1419 


Grav 


11/17/98 




97 CSE 1424 


Chess 


06/02/98 




97 CSE 1435 


Smith 


06/12/98 




97 CSE 1436 


Chess 


08/11/98 




97 CSE 1442 


Phipps 


06/17/98 




97 CSE 1450 


Momson 


12/09/98 




97 CSE 1467 


Mann 


10/09/98 




97 CSE 1492 


Smith 


06/22/98 




97 CSE 1527 


Mann 


09/08/98 




97 CSE 1 544 


Chess 


10/16/98 




97 CSE 1 545 


Phipps 


07/23/98 




97 CSE 1568 


Phipps 


06/1 7/98 




97 CSE 1599 


Phipps 


11/10/98 




97 CSE 1 605 


Mann 


07/1 5/98 




97 CSE 1611 


Gray 


10/23/98 




97 CSE 1656 


Grav 


08/27/98 




97 CSE 1666 


Chess 


07/1 7/98 





J 3: 1 3 



NORTH CAROLINA REGISTER 



January 4. 1999 



1070 



CONTESTED CASE DECISIONS 



AGENCY 

Marion Amett v Department of Human Resources 

Wade A Burgess v Department of Human Resources 

Robert L Robmson v Department of Human Resources 

Jamie A Hurtt v Department of Health & Human Services 

Renardo Jenkins v Department of Human Resources 

Anthonv Love v Department of Human Resources 

Eric Baldwin \ Department of Health & Human Services 

Steven Kent Gold v Department of Human Resources 

Leroy J Poole v Departmentof Human Resources 

Hoyal A McLean v Department of Health & Human Sen ices 

Michael Bernard Hill v Department of Health & Human Services 

Terrv M Cable v Department of Human Resources 

Charlie Ralliff'Jr v Department of Health & Human Services 

Donald W Lee v Department of Health & Human Services 

Bobby D Cook v Department of Health & Human Services 

John B Hall v Department of Human Resources 

Derrick A Brinlon v Department of Human Resources 

Tabatha D Pate v Department of Human Resources 

Amanda F Blount v Department of Human Resources 

Gregory Carty (IV #1564206) v Department of Human Resources 

Gregory Carty ( I V # 1 564 1 66 ) \ Department of Human Resources 

John L Bullard V Department of Human Resources 

Frank A Cotton v Department of Human Resources 

Charlie Gray Hunt Jr v Department of Human Resources 

Willie R Cruse v Department of Health & Human Services 

Thomas H Lotze. Jr v Department of Health & Human Services 

Robert L Williams v Department of Human Resources 

Patrick Bass \ Department of Health & Human Services 

Tawanna Wheeler \ Department of Health & Human Serv ices 

Timothy Kinney v Department of Health & Human Services 

Teresa L Galloway v Department of Health & Human Services 

Michael A Looper v Department of Health & Human Services 

Kenneth E Strickland v Department of Health & Human Serv ices 

Hoyi H Bunt Jr v Depanment of Health & Human Services 

Vemon Reginald Pinkney v Department of Health & Human Services 

Elijah G Deans V Department of Health & Human Services 

James Howard Alexander \ Department of Health & Human Services 

Lee J Coggins V Department of Human Resources 

Mark J Houlbrook v Department of Health & Human Services 

Henry A Hamel. Jr v Depanment of Health & Human Sen ices 

Amanda F Haviland Blount \ Department of Health & Human Sen ices 

Deniira Jeffries v Department of Health & Human Sen ices 

Bryan L Barksdale v Depanment of Health & Human Senices 

Karen Mitchell \ Department of Human Resources 

Robert S Willett v Department of Health & Human Senices 

Issac L Huey v Department of Health & Human Senices 

Bill G Seamans V Scotland Cty Child Sup Enf -Scotland County DSS 

Curtis M Threatt V Department of Health & Human Senices 

Sammy Ray Smith \ Department of Health & Human Senices 

Vickie E Lane v Michael L Adams. Department of Human Resources 

Carla P Robinson v Department of Human Resources 

Rachel D Farmer v Department of Health & Human Senices 

Janice Scott Padgett (Fisherl \ Department of Human Resources 

Barbara Fanta-Blandine v Department of Human Resources 

Sharon Brim v Department of Health & Human Senices 

Karen White \ Department of Human Resources 

Sherrv L. Hampton v Department of Human Resources 

Terita M Sharpe \ Department of Human Resources 

Shensse Stancel Kelly \ Department of Human Resources 

Ruth McFadden v Departmentof Human Resources 

Division of U omen 's and CItildren 's Health 

Khamis A Sirhan \ DHHS. Women's/Children's Health. Nutrition Svcs 
Joseph A Nawas \ DHHS. Women's/Children's Health. Nutrition Svcs 
Mohamad I Rahman v DHHS, Womens/Childrens HIth. Nutr Svcs Sect 
Evelyn Powell v Nutrition Senices Section 

JISTICE 

James Todd Tippet v NC Company Police Program 

Alarm Systems Licensing Board 

Claude Da\ id Huggins \ .Alarm Systems Licensing Board 
Jay Michael RatclilTv Alarm Systems Licensing Board 
Robert Derek Ross \ Alarm S\ stems Licensins Board 



CASE 




DATE OF 


MMBER 


AU 


DECISION 


97CSE 1685 


Mann 


12/10/98 


98CSE007I 


Morrison 


06/12/98 


98CSE0130 


Reilly 


07/1 5/98 


98 CSE 0307 


Morrison 


07/06/98 


98CSE0310 


Smith 


06/23/98 


98 CSE 0312 


Phipps 


06/23/98 


98 CSE 0319 


Phipps 


12/15/98 


98 CSE 0333 


Morrison 


07/01/98 


98 CSE 0375 


Reilly 


07/02/98 


98 CSE 0420 


Smith 


07/29/98 


98 CSE 0421 


Becton 


07/1 5/98 


98 CSE 0433 


Phipps 


12/09/98 


98 CSE 0449 


Mann 


07/15/98 


98 CSE 0469 


Gray 


11/09/98 


98 CSE 0483 


Reilly 


10/06/98 


98 CSE 0506 


Chess 


07/20/98 


98 CSE 0555 


Smith 


08/07/98 


98 CSE 0556 


Becton 


06/23/98 


98 CSE 0560 


Chess 


07/29/98 


98 CSE 0561"^ 


Phipps 


09/23/98 


98 CSE 0562*" 


Phipps 


09/23/98 


98 CSE 0569 


Morrison 


08/06/98 


98 CSE 0578 


Gray 


10/08/98 


98 CSE 0607 


Smith 


06/22/98 


98 CSE 0653 


Mann 


08/26/98 


98 CSE 0658 


Phipps 


08/31/98 


98 CSE 0682 


Smith 


06/22/98 


98 CSE 0689 


Owens 


09/18/98 


98 CSE 0691 


Owens 


1 0/09/98 


98 CSE 0728 


Smith 


09/17/98 


98 CSE 0769 


Becton 


07/30/98 


98 CSE 0783 


Chess 


09/08/98 


98 CSE 0817 


Mann 


09/08/98 


98 CSE 08 18 


Morrison 


09/15/98 


98 CSE 0833 


Owens 


07/29/98 


98 CSE 0867 


Phipps 


07/20/98 


98 CSE 0869 


Reilly 


08/06/98 


98 CSE 0894 


Smith 


08/20/98 


98 CSE 0949 


Smith 


09/08/98 


98 CSE 0975 


Chess 


09/01/98 


98 CSE 0985 


Mann 


11/18/98 


98 CSE 1036 


Morrison 


09/15/98 


98 CSE 1052 


Morrison 


10/09/98 


98 CSE 1095 


Reilly 


10/06/98 


98 CSE 1153 


Chess 


11/19/98 


98 CSE 1301 


Owens 


12/11/98 


98 CSE 1391 


Phipps 


12/09/98 


98 CSE 1447 


Phipps 


12/18/98 


98 CSE 1474 


Reilly 


12/18/98 


96 DCS 2105 


Gray 


07/08/98 


97 DCS 0124 


Reilly 


11/10/98 


97 DCS 0251 


Phipps 


08/31/98 


97 DCS 1219 


Smith 


07/29/98 


97 DCS I486 


Momson 


06/22/98 


97 DCS 1574 


Gray 


08/04/98 


98 DCS 0053 


Chess 


12/14/98 


98 DCS 0257 


Momson 


12/01/98 


98 DCS 0468 


Momson 


06/09/98 


98 DCS 0508 


Mann 


12/16/98 


98 DCS 0675 


ReilK 


07/15/98 


98DHR02I9 


Reilly 


08/11/98 


98 DHR 0637 


Phipps 


07/02/98 


98 DHR 0923 


Chess 


11/06/98 


98 DHR 1135 


Smith 


11/13/98 


97DOJ 1368 


Phipps 


09/10/98 


98DOJ0871 


Momson 


07/09/98 


98DOJ 1345 


Owens 


11/19/98 


98 DOJ 1 494 


Momson 


12/10/98 



PI BLISHED DECISION 
REGISTER CITATION 



1071 



NORTH CAROLINA REGISTER 



January 4, 1999 



13:13 



CONTESTED CASE DECISIONS 



AGE.NCV 

Barrs D Lvman\ Alarm S\ stems Licensing Board 

Auctioneer Licensing Board 

Wilev R r\ndall \ Auclioneer Licensing Board 
Ua\in Ha\iv Abadi \ Auctioneer Licensing Board 

Education and Training Standards Division 

Ihomas nua>ne BrouTi \ Sheriffs' [education &. I raining Standards C'omm 
Kenneth Joseph Jackson \ SheritTs' Education & Iraining Standards Comm 
Odis Fit/gerald Darden v ShentTs' Education & Lraining Standards C'omm 
Kenneth Earl Brantley v Criminal Justice Ed & Training Stds Comm 
Ho\le Kenneth Wise, Jr v ShentTs' Education & Training Standards Comm 
Hearl Oxendine v Criminal Justice Education & Training Stds Comm 
James Larrell Roberts \ Criminal Justice Education & I raining Stds Comm 
I'hilhp Keith McPherson \ ShentTs' Education & Iraining Standards Comm 
Darxl LaMar Br\ant \ ShentTs' Education & Training Standards Comm 
Harold F Esters v ShentTs' Education & Training Standards Comm 
William Scott Ke> v ShentTs' E,ducalion & Iraining Standards Comm 
Cecil V\ Duke. Jr v Criminal Justice Education & Training Stds Comm 
Amado Martinez \ Cnminal Justice Education & Iraining Stds Comm 
Johnn\ VVa\ne Wills v Criminal Justice Education & Training Stds Comm 
James E Ellerbe \ ShentTs' Education & Training Standards Comm 
Paul HarscN Taylor \ DOJ, Criminal Justice Ed & Training Stds Comm 
Kenneth Joseph Jackson \ ShentTs' Education & Training Standards Comm 
KelK Su/anne Mayberr> v ShentTs' Education & Training Stds Comm 
Robert Rvan Hardison v Sheriffs' Education & Irammg Standards Comm 
Iracey Jerome Clark v ShentTs' Education & Training Standards Comm 
Kevin Lamar Dorsey v ShentTs' Education & Training Standards Comm 
Willoughbs McCormick. Jr v ShentTs' Ed & Training Standards Comm 

Private Protective Services Board 

Wavne Carey v Private Protective Ser\ices Board 
Claims Verification. Inc v Private Protective Ser\'ices Board 
Walter R Shirer \ Private Protective Sen ices Board 
Stacey 1- Williams v Private Protective Semces Board 
Eugene Norman Uarrett v Private Protective Services Board 
G Russell Smith V Private Protective Services Board 
Dav id C Bnsson v Private Protective Ser\ ices Board 
Danny Charles Garrett v Private Protective Sersices Board 
Dav id C Truesdale V Private Protective Services Board 
Dennis Ray Hyatt v Private Protective Ser\ices Board 
■Alfred D Malson v Private Protective Services Board 
Rodnev Hamilton Marsh v Private Protective Senices Board 
Melvin Eugene Davis v Private Protective Services Board 
Glen Leon Fitchette v Private Protective Services Board 
.Arsin Itvvaru v Private Protective Services Board 

LABOR 

llildreth Mechanical & Maintenance \ Labor/Labor Standards 
Labor World. Eric Feinstein v Labor Harry E Payne. Jr 

BOARD OK MKDK AL EXAMINERS 

Joe D Cravvtbrd. M D v Medical Bd ofNC Bd of Medical Examiners 

PI BMC INSTRl CTION 

Linda & Dannv Houard for Nikki Hov\ard v DHHS. Murdoch Center 
George & Ruth Sinclair for Adam Sinclair v Wake County Schools 

(Special Education Services) 
Nicholas Eirschele. Bv and Throught His Parents, Charles & Kathleen 

Eirschele v Craven County Board of Education 
De\Mtt Brinson & Elizabeth Brinson \ Craven County Board of Education 
Gene Edward Lloyd v Department of Public Instruction 
Mrs Phyllis \ Moore v Cumberland County Schools 
Lanev Bruce Flarrill v State Board of Education 

L K on behalf of her son. J H . as well as on her own behull \ St Bd /Ed 
Joseph J Sarrerro V Department of Public Instruction 
M E and her husband. PE , individually, and on behalf of their son. C E 

\ Bd of Ed for Buncombe Cty a/k/a Buncombe Ctv Public Schools, et al 
Linda & Dannv Howard lor Nikki Howard v Lenoir Cty Bd of Ed 

STATE BAR 

I inda R Sharp v North Carolina State Bar 



CASE 




DATE OF 


M MBER 


AIJ 


DECISION 


98 DOJ 1 496 


Smith 


12/16/98 


97 DOJ 1236 


Phipps 


07/24/98 


98 DOJ 1 060 


Smith 


10/21/98 


97 DOJ 1319 


Phipps 


07/29/98 


97 DOJ 1 578'" 


Cirav 


08/20/98 


97 DOJ 1 698 


Reillv 


06/12/98 


98 DOJ 0046 


Gray 


1 1 /04/98 


98 DOJ 0022 


Smith 


07/14/98 


98 DOJ 0121 


Smith 


06/22/98 


98 DOJ 0147 


Smith 


07/16/98 


98 DOJ 0388 


Reilly 


07/24/98 


98 DOJ 0430 


Gray 


07/21/98 


98 DOJ 0431 


Gray 


08/2 1 /98 


98 DOJ 0432 


Becton 


06/08/98 


98 DOJ 0479 


Chess 


10/07/98 


98 DOJ 0526 


Mortison 


09/09/98 


98 DOJ 0574 


Chess 


07/30/98 


98 DOJ 0600 


Morrison 


08/07/98 


98 DOJ 0841 


Phipps 


09/16/98 


98 DOJ 0847*" 


Grav 


08/20/98 


98 DOJ 0875 


Chess 


11/13/98 


98 DOJ 0878 


Phipps 


09/08/98 


98 DOJ 0879 


Owens 


08/31/98 


98 DOJ 0930 


Phipps 


09/22/98 


98 DOJ 1007 


Reillv 


10/13/98 


98 DOJ 0619 


Owens 


11/19/98 


98 DOJ 0848 


Smith 


08/04/98 


98 DOJ 0937 


Morrison 


09/17/98 


98 DOJ 0938 


Morrison 


08/18/98 


98 DOJ 0939 


Morrison 


08/18/98 


98 DOJ 0940 


Owens 


11/19/98 


98 DOJ 0941 


Owens 


11/19/98 


98 DOJ 1081 


Morrison 


09/17/98 


98 DOJ 1 082 


Morrison 


12/10/98 


98 DOJ 1 1 39 


Ovsens 


11/19/98 


98 DOJ 1141 


Morrison 


09/29/98 


98 DOJ 1 1 42 


Owens 


11/04/98 


98 DOJ 1145 


Morrison 


09/22/98 


98 DOJ 1 307 


Owens 


11/03/98 


98 DOJ 1 493 


Morrison 


12/10/98 


98 DOE 0903 


Mann 


11/04/98 


98 DOE 1256 


Grav 


11/05/98 


98 BME 0870 


Owens 


07/30/98 


97EDC 1047 


Grav 


11/03/98 


97EDC 1233 


Phipps 


08/11/98 


97 EDC 1 234 


Phipps 


07/16/98 


97EDC 1298 


Phipps 


10/26/98 


98 EDC 01 10 


Reillv 


09/10/98 


98 EDC 0305 


Grav 


08/05/98 


98 EDC 0350 


Smith 


09/17/98 


98 EDC 0370 


Smith 


10/14/98 


98 EDC 0459 


Owens 


08/10/98 


98 EDC 0566 


Gray 


10/01/98 


98 EDC 1 047 


Gray 


10/30/98 


98 BAR 1 344 


Morrison 


11/09/98 



PI BUSHED DEC ISION 
REGISTER CITATION 



13 11 NCR 935 



13:13 



NORTH CAROLINA REGISTER 



Januarv 4, 1999 



1072 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
MMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



STATE PERSONNEL 



Department of Administration 

David Grigsb\ v NC Commission ol Indian Affairs 

Community- Colleges 

Dr William R Strickland v NC Communit\' College System 

Department of Correction 

Annie D Dizon v NC Correctional (Inst ) Center for Women 

Terrv' T Rees v Department ofCorrection 

Mohammad H Baloch. M D v Department of Correction 

Leon Owens V Department of Correction 

Terry T Rees v Department of Cortection 

Michael A Smith v Department ofCorrection 

Michael A Smith v Department of Correction 

JavTie D Bledsoe v Cortection. Div of Adult Probation & Parole 

Carl W Craven. II v Pender Cortectional Institution 

Ervin Shau v Martin Homer. Asst Super . Cort . Sandy Ridge Cort Ctr 

Joseph Szilagyi v Department of Cortection 

Dennis S Hartell v Dept of Cortection. Caledonia Cortectional Institute 

Tommy L Hancock v Department of Cortection 

Tommy L Hancock v Department of Cortection 

Bertha Darden \ Raymond Smith & Dept of Cortection. Central Prison 

Robert C Louder v Broun Creek Cortectional Institution 

Ruth Moseley \ Department of Cortection 

Lamont M Bun \ Department of Cortection 

Leo Powell v Harnett Cortectional Institute. Department of Cortection 

Amos Boone v Department of Cortection 

Nona W Hubbard v DOC. Division of Community Cortections 

Robert R Stovall v Department of Cortection 

Harold Keith Hamm v Dept of Cortection Enterpnse/Personnel Off 

Joseph A Hartell v Cortection. Di\ of Adult Probation & Parole 

Crime Control and Public Safety 

Roger D Davis \ Crime Control & Public Safety. St Hwy Patrol 
Albert R Lmle v Cnme Control & Public Safety. Info Sys Specialists 
Thomas E Carlton v Crime Control & Public Safety. St Hwy Patrol 

Eastern North Carolina School for the Deaf 

Cathy A Lancaster \ Eastern North Carolina School for the Deaf 

Employment Security Commission 

Jane B Bolin and Arlene G Sellers v Employment Security Commission 
Jane B Bolin and Arlene G Sellers v Employment Securit\ Commission 

Environment and Natural Resources 

Charles Anthony Bruce \ ENR. Division of Parks and Recreation 

Health and Human Services 

Annette Honea v Department of Human Resources 

Angela M Miles v Cumberland Counbi Department of Social Sen ices 

Shung Fung-Chin \ Department of Human Resources. Caswell Center 

Walker Cannon v DHR/Caswell Center 

Chantv Swick v Cumberland Count\ Department of Social Ser\ ices 

Yolandra Best and Roy Hudson \ DHHS. John Umstead Hospital 

Yolandra Best and Ro\ Hudson v DHHS. John Umstead Hospital 

Kenneth Dippel V Columbus Count\ Dept of Social Services 

Fred Foster. Jr v Department of Health and Human Services 

Shung Fung-Chin v Department of Human Resources. Caswell Center 

Ruth Holroyd v Montgomep. Ct> DSS. Children's Services 

Tilda D Whitaker v Nash County Health Department Board of Directors 

Fred Foster. Jr v Department of Health and Human Services 

James W Crews \ DHHS. Murdoch Center 

Patrtcia R Quick v DHHS. Dorothea Dix Hospital 

Angela M Miles \ Cumberland County Department of Social Services 

Delores Laveme Rich v Health & Human Services. Dorothea Dix Hosp 

Elwin C Munson v Health & Human Services. Juvenile Evaluation Center 

Fred Foster. J r v Department of Health and Human Services 

David A Kilpatnck v Health & Human Services. Caswell Center 



98 OSP 0428 


Mortison 


98 0SP 1305 


Gray 


97 OSP 0166 


Mann 


97 OSP 1671*' 


Smith 


98 OSP 0014 


Gray 


98 OSP 0050 


Becton 


98 OSP 01 19*' 


Smith 


98 OSP 023 1 *" 


Reilly 


98 OSP 031 7*" 


Reilly 


98 OSP 0543 


Owens 


98 OSP 0633 


Smith 


98 OSP 0671 


Phipps 


98 OSP 0757 


Owens 


98 OSP 0846 


Mortison 


98 OSP 0881 


Owens 


98 OSP 0882 


Owens 


98 OSP 0905 


Smith 


98 OSP 0984 


Owens 


98 OSP 1092 


Gray 


98 OSP 1 1 1 5 


Smith 


98 OSP 1175 


Owens 


98 OSP 11 88 


Smith 


98 OSP 1214 


Owens 


98 OSP 1282 


Phipps 


98 OSP 1409 


Gray 


98 OSP 1411 


Gray 


97 OSP 0617 


Chess 


97 OSP 1157 


Mortison 


98 OSP 0919 


Phipps 


98 OSP 0482 


Gray 


97 OSP 1122'' 


Chess 


97 OSP 1134*' 


Chess 


98 OSP 0240 


ReilK 


96 OSP 0833 


Chess 


97 OSP 0613*' 


Gray 


97 OSP 0638*'" 


Chess 


97 OSP 0731 


Phipps 


97 OSP 0775 


Gray 


97 OSP 0862*" 


Chess 


97 OSP 0863*" 


Chess 


97 OSP 0905 


Gray 


97 OSP 1287*'- 


Smith 


97 OSP 1530*'" 


Chess 


97 OSP 1586 


Smith 


97 OSP 1665 


Gray 


97 OSP 1701*'- 


Smith 


98 OSP 0060 


Gray 


98 OSP 006! 


Becton 


98 OSP 0084*' 


Gray 


98 OSP 0120 


Gray 


98 OSP 0140 


Phipps 


98OSP0I87*'- 


Smith 


98 OSP 0271 


Owens 



12/14/98 



12/07/98 



11/06/98 
06/30/98 
09/01/98 
07/10/98 
06/30/98 
08/11/98 
08/11/98 
07/29/98 
06/25/98 
10/09/98 
10/05/98 
09/08/98 
08/04/98 
10/09/98 
09/25/98 
12/02/98 
10/07/98 
10/06/98 
11/25/98 
12/15/98 
10/27/98 
10/26/98 
12/16/98 
12/11/98 



05/27/98 
07/22/98 
09/24/98 



11/30/98 



06/02/98 
06/02/98 



06/08/98 



08/24/98 
07/10/98 
08/13/98 
11/30/98 
07/10/98 
08/13/98 
08/13/98 
11/09/98 
08/20/98 
08/13/98 
05/27/98 
12/02/98 
08/20/98 
07/20/98 
07/16/98 
07/10/98 
07/08/98 
10/28/98 
08/20/98 
08/13/98 



13 02 NCR 257 



Consolidated Cases. 



1073 



NORTH CAROLINA REGISTER 



Januan 4, 1999 



13:13 



CONTESTED CASE DECISIONS 



AGENCY 

Fred Foster. Jr v Department of Health and Human Senices 

Laura Blanton \ Cleveland Center 

Anthon\ M Ruiz v Department of Health & Human Svcs, Youth S\cs 

Rudolph Waters v DHHS. Vouth Senices, Dobhs School 

Euwell Falconer v Karen A Andrews, Oaston-l.mcoln Area Mental Health 

JetTrey L Williams \ Dorothea Di\ Hospital 

Delores Laveme Rich \ DHHS, Dorothea Di\ Hospital 

Barbara Jean Paquette \ Durham Count\ (respondeat superior tor the 

Durham Counts Public librar\ ) 
Lmda Paige \ Center Point Human Ser\ ices Forsuh Mental Health 

Fors\lh Industrial Systems 
Stanle> K Strong \ Jimm\ Summenille, Dobbs School, ^'outh S\cs 
Derrick Skinner v Fiealth & Human Ser\'ices. Cherry Hospital 
Paul L Long \ Department of Health & Human Ser\ ices 

Department of Insurance 

Patricia Casey Rollins v Department of Insurance 

Department of Justice 

Linda Margaret Koss v State Bureau ot Inxcstigalion 

Department of Public Instruction 

Lillie Bumette Pearsall V Wavne Cl\ Bd ofLd.Mrs Veda McNair and 
Mr Ste\e Tavlor 



CASE 




DATE OF 


MMBER 


AIJ 


DECISION 


98OSP0403*'- 


Smith 


08/20/98 


98 OSP 0453 


Smith 


10/02/98 


98 OSP 0454 


Gra\ 


06/04/98 


98 OSP 0474 


Morrison 


07/30/98 


98 OSP 0538 


Reillv 


08/06/98 


98 OSP 0595 


Becton 


07/22/98 


98 OSP 0763 


Gra\ 


1 2/02/98 


98 OSP 0765 


Morrison 


08/05/98 



PI BLISHED DECISION 
REGISTER CITATION 



98 OSP 0819 



Smith 



11/05/98 



98 OSP 1017 


Gra\ 


1 2/07/98 


98 OSP 1035 


Gray 


09/21/98 


98 OSP 1202 


Owens 


12/16/98 


95 OSP 0729 


Chess 


12/14/98 


97 OSP 0189 


Chess 


08/14/98 


98 OSP 0944 


Smith 


08/25/98 



Secrelart- of Slate 

Jonathan M Demers \ Department of Secretary of State 

Department of Transportation 

Pasquale \cndettuoli \ Department of Transportation 

Johnny O Shi\ar\ Department of Transportation 

Teresa G Mitchells Department of Transportation 

Larry W Davis v Department of Transportation 

Sherry LynnNolesv Department of Iransportation-NCDMV 

Clarice Goodwin .Arthur \ Department of Transportation. Femes Di\ ision 

L'niversity of North Carolina 

Joseph A Br\ant v North Carolina A & T University 

Joseph .\ Br>ant v North Carolina A & T University 

Douglas Love. Jr v UNC Hospitals 

Deborah J Fenner v NC Central University 

Joyce M Smith v North Carolina Central University 

Edwin Swain \ University of North Carolina at Chapel Hill 

Patricia A G Roberts v Asst /Chan /Qty Mgmt /Dir Human Res UNCW 

Leo Watford. Roosevelt Pams. Claiborne Baker, et al v University of 

North Carolina at Chapel Hill 
Johnny Johnson. Jr v A & T St finiversity Student Union-(irie\ance Bd 
Jessie L Johnson \ Bernard K Locklear. UNC at Pembroke 
Jonathan L Fann v North Carolina State Universitv Physical Plant 
Greta M Hawthorne v University of NC at Pembroke 
Robert W Brinson v NC State Universitv 
Alberta A Ingram-Peterson v NC Central University 
Fred T Jackson \ UNC-Charlotte Recreational Facilities 
Betty Parks v Winston Salem State University 
Ronnie Bell \ Dave Hillard. UNC at Charlotte 

STATE TREASl RER 

Hugh A Wells \ Consolidated Judicial Retirement System of NC. 

Bd of Trustees Teachers and State Lmployees' Retirement Svstem 
Walter Williams \ Bd of Trustees NC Local Gov Fmp Retirement Sys 



TRANSPORTATION 

Dav id Warren Dew et al 



\ Motor Vehicles. .Alexander Killcns Comm 



I Nl\ ERSITV OF NORTH ( AROI INA 

Patricia D Hall \ L'niversity of North Carolina at Chapel Hill 
Ladonna P James v LINC Hospitals 
Joyceline Sellars \ UNC Hospitals 



97 OSP 1018 


Becton 


07/07/98 


3 03 NCR 343 


97 OSP 1 090 


Morrison 


12/19/98 




97 OSP 1 366 


Reilly 


09/01/98 




97 OSP 1565 


Smith 


12/09/98 




98 OSP 0241 


Gray 


07/08/98 




98 OSP 0269 


Chess 


08/11/98 




98 OSP 0864 


Phipps 


09/24/98 




96 OSP 1698*" 


Mann 


12/02/98 




97 OSP 0242*" 


Mann 


12/02/98 




97 OSP 0662 


Reilly 


06/08/98 




97 OSP 0902 


Chess 


05/29/98 




97 OSP 1297 


Smith 


06/25/98 




97 OSP 1 694 


Mortison 


07/31/98 




98 OSP 0178 


Phipps 


10/08/98 




98 OSP 0254 


Chess 


07/17/98 




98 OSP 0299 


Owens 


09/02/98 




98 OSP 0444 


Gray 


09/29/98 




98 OSP 0465 


Becton 


07/17/98 




98 OSP 0831 


Chess 


09/11/98 




98 OSP 0887 


Owens 


08/1 0/98 




98 OSP 1024 


Smith 


10/14/98 




98 OSP 1216 


Smith 


10/22/98 




98 OSP 1278 


Chess 


11/25/98 




98 OSP 1330 


Smith 


11/10/98 




98DST0316 


Morrison 


06/05/98 


3 01 NCR 166 


98 DST 0774 


Smith 


12/08/98 




95 DOT 1 1 44 


Gray 


06/04/98 




98 LINC 0397 


Reilly 


08/20/98 




98LFNC0591 


Becton 


07/20/98 




98 UNC 1113 


Smith 


10/22/98 





13:13 



NORTH CAROLINA REGISTER 



Januarv4, 1999 



1074 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTN OF ORANGE 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

96 DOA 0006 



OCCANEECHI BAND OF THE SAPONI NATION 
Petitioner, 



) 
) 
) 
) 
V. ) 

) 

NORTH CAROLINA COMMISSION OF INDIAN AFFAIRS ) 

Respondent. ) 



RECOMMENDED DECISION 



This matter was heard before Administrative Law Judge Dolores O. Smith on Februar}' 24, 1997 and July 20-28, 1998. 

APPEARANCES 

Petitioner: Alan McSurely 

Attorney at Law 
157 '/2E. Franklin Street 
Chapel Hill, North Carolina 27514 
Attorney for Petitioner 

Respondent: David Steinbock 

Assistant Attorney General 
N.C. Department of Justice 
P.O. Box 629 

Raleigh, North Carolina 27602 
Attorney for Respondent 

ISSUE 

Did the Respondent err in denying Petitioner's application for tribal recognition? 

STATUTES AND RULES IN ISSUE 

N.C. Gen. Stat. 143B-406 
1 NCAC 15.0100 etseq 
1 NCAC 15 .0200 etseq 

STATEMENT OF THE CASE 

1. It was asseiled at the heanng and it is noted herein, that the issue before the Commission is not 
whether the Petitioners are Indian, but whether the Petitioners are a "tribe" as defined by the regulations. 

2. After one day of hearing in February of 1 997, the Parties requested and agreed that the matter be sent to mediation 
before continuing with any additional days of the hearing. The Motion was allowed and the matter was put before a mediator. After 
approximately a year and a half, the mediation was declared at an impasse and the matter proceeded to hearing. 

3. Evidence was presented to indicate that at least one supplement, the 1995 supplement, may never have been 
reviewed by the Recognition Committee. Additionally, material continued to be presented, albeit informally, to the Recognition 
Committee throughout the period of the contested case, the mediation and the hearing. The parties were questioned but could not 
delineate which material had been known to the Commission at any particular time in their deliberations. However, at the hearing, 
the Commission adopted its decision to deny the Petition notwithstanding any of the information which had been submitted to it after 
its last official denial. The undersigned therefore is considering all information presented at the hearing as if it had been known to 
the Commission at the time of its denial. 



4. 



The burden of proof in showing that this petitioning group should be awarded tribal recognition rests squarely with 



1075 



NORTH CAROLINA REGISTER 



Januan' 4, 1999 



13:13 



CONTESTED CASE DECISIONS 



the petitioning group. 

That burden includes not only researching material to show that the Petitioner satisfies the regulations, but also includes the 
burden of presenting that material to the Commission in a clear manner and in a manner which requires no research other than that 
which is necessary' for the purpose verification. Some sections of the Petition for Recognition and the subsequent submissions were 
clearly spelled out but others were not. If the Commission could not decipher data because of unreadable photocopies or illegible 
ancient handwriting, the Commission did not have the burden of continuously seeking clarification of those items. 

5. During the deliberation period, the Petitioning Group was asked for direction to locations of items of evidence. 
This was necessary because of the voluminous amount of evidence and because of the difficulty in reading ancient documents. During 
this time, no new evidence was allowed. Petitioner's Motion to admit into evidence its replies to the questions along with its alleged 
duplicate submissions was denied. Evidence which was not clearK admitted was categorically disregarded such as the two important 
but previously unseen depositions of Nancy Davis and William Harris. 

6. The quest for self-identity, especially fi-om people so long abused, is an attractive and romantic notion. However, 
to be influenced by such concerns is, in the opinion of the undersigned, bias and has not been allowed to enter into deliberations. 

Based upon careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits received 
into evidence, and the entire record in this proceeding, the undersigned makes the following: 

FINDINGS OF FACT 



North Carolina General Statute §1438-404 created the North Carolina Commission of Indian 



Aifairs. 



2. N.C. Gen. Stat. 143B-405 sets out the duties of the Commission and G.S. 143B-406 provides that the Commission 
shall establish appropriate procedures for legal recognition by the State of presentK unrecognized groups and tribes. 

3. To that end, the Commission promulgated recognition rules which are set out in the North Carolina Administrative 
Code, Title I, r. 15. 0202 et seq. 

4. Also, to that end, the Commission established a Recognition Committee. The Recognition Committee is mandated 
with the dutv to review Petitions and make presentations and recommendations to the full Commission. 

5. I NCAC 15. 0208 provides that a group mav petition for recognition either as an Indian tribe or as an Indian 
organization or group. 

6. That same rule defines "Indian tribe" as: 

... a population of Indian people all related to one another by blood, tracing their heritage to 
Indian tribes indigenous to North Carolina within the last 200 years... 

7. 1 NCAC 15 .02 1 1 provides that. "onK tribes tracing back to Indian tribes indigenous to North Carolina for at least 
200 years will be considered for recognition by the Commission." 

8. 1 NCAC 15 .0209 lists eight criteria for tribal recognition and provides that at least fi\e of those criteria must be 
met before a group can be recognized. 

9. The criteria of I NCAC 1 5 .0209 are: 

(1) traditional North Carolina Indian names; 

(2) kinship relationships with other recognized Indian tribes; 

(3) official records such as birth, church, school or other recognizing the people as Indian; 

(4) letters or statements from state or federal authorities recognizing the people as Indian; 

(5) anthropological or historical accounts tied to the tribes" Indian ancestry; 

(6) letters or statements from presently recognized tribes or groups or their representatives attesting to the 
Indian heritage of the tribe; 



13:13 NORTH CAROLINA REGISTER January 4, 1999 1076 



CONTESTED CASE DECISIONS 



(7) any other documented traditions, customs, legends, etc. that signify the tribes" Indian heritage; 

(8) participation in or grants from sources or programs designated as for Indian onl)'. 

10. I NCAC 15 .0214 provides the following: 

Each petitioning tribe or organization must submit to the commission a roll of 
its members as a condition to recognition. TTie tribal roll should list the names 
and addresses of the people and relate each one to their kinship ties. 

11. At the time the Commission was deliberating on the creation of its rules, it looked for guidance to the federal 
government's rules on tribal recognition. 

12. The Commission did not want its requirements for tribal recognition to be as stringent or as difficult to satisfy as 
those provided by the federal government. 

13. For example, the federal regulations include the following two requirements; 

(a) 25 CFR 83.7(b) provides that the Petitioning group must inhabit a specific area "distinct 
from other populations;" 

(b) 25 CFR 83.7(c) provides that a petitioning group must provide facts establishing that 
the group "has maintained tribal political influence or authority over its members... 
throughout history until the present". 

14. The State recognition criteria do not include requirements for a continuous political tribal organization, nor do they 
include a requirement for the existence of a community separate and distinct from other communities. 

15. Additionally, there has historically been a criteria applied to people of mixed Indian blood known as "Blood 
Quantum". This reflects the amount of Indian blood in any particular person such as one-fourth, one-eighth, etc. and was, at times, 
used to define a person's degree of "Indian-ness." The North Carolina Commission of Indian Affairs has rejected the concept of 
a blood quantum analysis and, therefore, no such requirement is included in their regulations. 

16. Some Commission members testified that while the amount of Indian blood is not relevant, living in the "Indian 
way" is. One Commission member testified, "You might have Indian heritage, but if you don't live as an Indian, you're not a tribe." 

17. However, it is found as fact that there is no statute or rule which requires that the Petitioning Group be living in the 
"Indian way". 

18. Some Commission members testified that if an ancestor denied his Indian heritage in order to get land or an education, 
"you are through as an Indian." There was also testimony that, you can not pick up and put down the title of "Indian" for your 
convenience. When asked if a descendent could later reclaim their Indian heritage, the response was, "No." 

19. However, it is found as fact that there is no statute or rule which provides that ancestors may not have denied their 
heritage or culture. 

20. On several occasions the Commission members testified that they have been looking in this Petition for a "rifle shot" 
straight back from a current tribal member to an ancestor described as a member of an indigenous tribe. 

21 . However, it is found as fact that there is no requirement that a Petitioning Group trace their heritage by direct 
evidence (a "rifle shot") and not by circumstantial evidence. 

CASE BACKGROUND 

22. On January 16, 1990, the Commission received a Petition for State Recognition from the "Eno Occaneechi Indian 
Association," which the Commission referred to the Recognition Committee. 

23. Members of the Commission's support Staff provides administrative support to both the full Commission and to 
the Recognition Committee. The Staff also conducted reviews of the Petition and its supplements, which reviews were provided to 

1077 NORTH CAROLINA REGISTER Januan' 4, 1999 13:13 



CONTESTED CASE DECISIONS 



the Recognition Committee 

24. Just prior to receiving the Eno Occaneechi Petition, the Commission had received a Petition for Recognition from 
the "Tuscarora Indians". 

25. The Commission knew that it did not have sufficient Staff to research more than one Petition at a time, and since 
the Tuscarora Petition had come in first, the Commission determined that that Petition should he handled tlrst. 

26. This decision caused a deiaN in the Commission's handhng of the Eno Occaneechi Petition at various stages in the 
process. 

27. Ultimately, the Commission made the decision to "table" the Tuscarora Petition because the Tuscaroras had not 
been actively pursuing the Recognition process. 

28. The Commission then determined that it would begin the review of the Petition from the Eno Occaneechi. 

29. On December 5, 1991. the Recognition Committee met and determined that they would ask the State Office of 
Archeology to review the Historical Narrative Section of the Eno Occaneechi Petition. 

30. State Archeologist, Steve Claggett was contacted and agreed to conduct the review of this section of the Petition. 

3 1 . On March 1 . 1 99 1 . after completing the review, Mr. Claggett wrote to the Commission stating. "1 and members 
of my Staff have read portions of the two volume document concentrating on the historical narrative and Anthropological/Historical 
Accounts Sections of the Petition. Our basic opinion of the Petition is that the Archeological and Historic Background Sections are 
technically and historicalK as accurate as current research allows". 

32. At the June 3. 1992 Recognition Committee Meeting, the Commission learned that it had received approval to use 
$2000 of lapsed salaries to hire a consultant to begin a re\iew of the Eno Occaneechi Petition. 

33. The Commission determined that it would ask Dr. Robert Daniels of the Department of Anthropology. University 
of North Carolina at Chapel Hill, to review the Eno Occaneechi Petition and to report his findings back to the Commission. 

34. Dr. Daniels was contacted and agreed to conduct the review. 

35. On September 29. 1992. Dr Daniels submitted the report of his review to the Commission. 

36. During this same period of time, the Commission Staff had also been conducting its" own review of the Petition. 
In October of 1992. the Staff produced a summation of its review of the Petition which was distributed to members of the 

Recognition Committee. 

37. In November of 1 992. the Recognition Committee met to discuss the reviews prepared both by the Staff and b\ Dr. 
Daniels. 

38. Dr. Daniels" review concluded: 

In my opinion, the petition does demonstrate that a significant proportion of the petitioners have 
a valid claim to a heritage derived from Indian tribes indigenous to North Carolina 200 years ago. 

39. Dr. Daniels" review also concluded: 

...the petitioners" case rests on assembling several pieces of evidence that together amount to an 
explanation that in my opinion is credible beyond a reasonable doubt. Those pieces involve 
documents which show that Indians of the Saponi and related groups did survive into the 1700s. 
that their earlierst named ancestors were associated with the same area and vsere of mixed Indian 
ancestry. 

40. The Staff concluded that the group"s tribal name "does not have continuity w ithin this group"". Staff also noted that 
while there has been a demonstration of Indian ancestn,. the tribal identification does not go back to one specific tribe but rather to 



13:13 NORTH CAROLINA REGISTER January 4. 1999 1078 



CONTESTED CASE DECISIONS 



Catawba. Croatan, Saponi, or mixed "indian ancestry". 

41. As to the eight criteria, the Staff "s review and Dr. Daniels" review were also not in accord. 

42. Dr. Daniels determined that Criterion One. traditional North Carolina Indian Names was met "... if this is 
interpreted to mean family names of European origin traditionally associated with people of (total or partial) Indian Ancestry..." 

43. The Staff determined that, while Dr. Daniels" interpretation of the criterion was correct. Criterion One would not be 
met without further documentation. The Staff report stated. "It would strengthen the Petitioners" claim if there were a smaller group 
of core surnames from whom the present day members could demonstrate direct descent"". 

44. Dr. Daniels found that Criterion Two. Kinship Relations with other recognized Indian Tribes "...was met"". The 
Staff found that Criterion Two was not met and would not be met without further documentation. 

45. Dr. Daniels found that Criterion Three. Official Records such as birth, church, school or other recognizing the 
people as Indian, "...was met and was clearly demonstrated."" 

46. Staff determined that the Petitioners" evidence of Criterion Three was composed of delayed Certificates of Birth. 
Since these dela\ed Certificates could be obtained by self-declaration, (an applicant for the reissuance of a birth certificate could 
simpK declare himself to be an Indian). Criterion Three had not been met. 

47. Dr. Daniels found that Criterion Four, Letters or Statements from State or Federal authorities recognizing the people 
as Indian was "... met and was well established."" 

48. Staff found that Criterion Four was not met in part because many of the documents attesting to people being Indian, 
talked about people not clearly on the tribal roll or geneologies. 

49. Dr. Daniels found that Criterion Five, Anthropological or historical accounts tied to the tribe" s Indian ancestry 
"...was met"". 

50. Staff stated. ""Staff sees the primar\' problem with this section of the Petition to be the failure of the Petitioner to 
prove clear descent of current members of the Petitioning group from the historic Eno Occaneechi"". 

51. Dr. Daniels found that Criterion Six, letters or statements from presentK recognized tribes or groups or their 
representatives attesting to the Indian heritage of the tribe, was "perhaps"" met. 

52. The Staff also found Criterion Six to have been met. 

53. Dr. Daniels found that Criterion Seven. an\ other documented traditions, customs, legends, etc.. that signify- the 
tribe"s Indian heritage, was not met. 

54. The Staff agreed with Dr. Daniels that Criteria Seven had not been met. 

55. Dr. Daniels found that Criterion Eight, participation in or grants from sources or programs designated as for Indians 
only, was '"perhaps"" met. 

56. The Staff found that Criteria Eight had not been met. 

57. Dr. Daniels summarized his findings as follows: 

In summap.; Criteria 3, 4. and 5 are clearK satisfied. Criteria I is satisfied if my reading of the 
requirements is correct. I judge Criteria 2, 6. and 8 to have been satisfied but wish to advise the 
committee that the evidence here is not as strong and its interpretation is a matter of judgment. 
Criterion 7 has not been satisfied. 

58. After discussing these Uvo reports, and their conclusions, the Recognition Committee made its own determination. 
They decided that Criteria 4 and 6. had been met b\ the Petitioning group but that none of the other criteria had been met. 



1079 NORTH CAROLINA REGISTER Januan- 4. 1999 13:13 



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59. 



In summarx; 








Criterion 


Dr. Daniels 


Staff 


Recognition Committee 


1 


Met 


Not met 


Not met 


2 


Met 


Not met 


Not met 


3 


Met 


Not met 


Not met 


4 


Met 


Not met 


Met 


5 


Met 


Not met 


Not met 


6 


Met 


Met 


Met 


7 


Not Met 


Not met 


Not met 


8 


Met 


Not met 


Not met 



60. The Recognition Committee also determined that the tribal roll and the "200 year" requirement had not been met. 

61. The Recognition Committee presented its findings to the full Commission. The full Commission adopted the 
findings of the Recognition Committee and subsequently the Commission wrote to the Petitioning Group reporting that the Petition 
had been reviewed and the Commission had made the following determinations: 

Criteria 4 and 6 have been met 

Criteria I, 2, 3, 5. 7 and 8 have not been met 

62. The Commission also determined and reported to the petitioning group that the requirements of 1 5 NC AC .02 1 4. 
the Tribal Roll, had not been met in that the Petitioners had not shown the kinship relationships of the people on the roll. 

63. The Commission also determined and reported to the petitioning group that the requirements of 1 5 NCAC .02 ! 1 . 
tracing the tribe back 200 years to a tribe indigenous to North Carolina, had not been met. 

64. The Committee directed Staff to prepare a written and detailed statement of the Petition's "Obvious Deficiencies" 
as found by the Recognition Committee and to send it to the petitioning group. This was done on December 8. 19Q2. 

65. On March 1 1, 1993, the Eno Occaneechi Indian Association wrote to the Commission informing them that they 
would respond to the statement of Obvious Deficiencies with a supplement to their Petition. 

66. During the entire recognition process, the Petitioning group continued to conduct historical and genealogical 
research and to submit additional information to the Commission. 

67. In July of 1993, the Petitioning Group submitted to the Commission the First Supplement to their Petition. 

68. In November of 1993. the Staff conducted an exhaustive and lengthy review of this First Supplement to the Petition 
and produced another report which was submitted to the Recognition Committee. 

69. This Staff report discussed a number of inconsistencies but did not include a conclusory statement. Instead, the 
Staff ended the report by stating; 

The Recognition Committee must make the determination of how crucial these inconsistencies 
and/or omissions are in their deliberation regarding the Petition. 

70. The Recognition Committee met on Fehruarx 2 1. 1994. and. after reviewing the Petition, its Supplement and the 
Staff report, the Committee determined that it found the Petition to be "incomplete" and Petitioner would have 90 da\s to submit 
additional documentation. The Commission wrote to the Petitioning group informing them of this decision. 

71. On May 23.1994. the Second Supplement to the Petition was received by the Commission. 

72. Continued reviews and deliberations ensued and on Ma\ IQ. 1995. the Third Supplement to the Petition was 
submitted to the Commission. 



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73. During this period of time, the Commission was notified that the Petitioners had retained a lawyer who was astcing 
for copies of all material relevant to their Petition as well as material relevant to an earlier recognition procedure wherein the Meherrin 
Indians had applied for, and were eventually awarded, tribal recognition. 

74. Also during this period of time, the "Eno-Occaneechi Indian Association" had held its annual meeting, elected new 
officers, and changed the name of the Association to the "Occaneechi Band of the Saponi Nation." 

75. The Commission learned that there had been a rift in the Petitioner's organization and that the previous Chief was 
asserting that he and his followers would be continuing to Petition for recognition under the old name. The new Chief was asserting 
that the recognition process should continue under the new tribal name. The Commission was imcertain as to whether the Petition 
under consideration belonged with the old group or the new group. 

76. Ultimately, it was determined that the Petition would continue along the recognition process with the new name 
and the new Chief. 

77. In the Spring of 1995, the Staff completed another exhaustive review of the Petition encompassing all submissions 
received to date. This review, however, did not include the most recent supplement submitted on May 19, 1995. 

78 Janet McLamb, who had been the primary Staff reviewer for the Commission, was leaving her position and had 

just completed her review when the last submission came in. Since she was about to leave that position, she did not have time to 
conduct a review of this last supplement before she left. 

79. The Recognition Committee met on May 22, 1995. At that meeting the Committee heard a presentation from the 
new "Chief," Lawrence Dunmore, President of the "Occaneechi Band of the Saponi Nation." 

80. At some point in the process and prior to the commencement of the second setting of this hearing, the Commission 
determined that the Petitioning group had met an additional criterion. 

81. In addition to Criteria 4 and 6, the Commission determined that the group had also met Criterion 8, participation 
in grants from sources or programs designated as for Indian only. 

82. In July of 1995, Staff members completed an addendum to the final review completed in May which covered the 
recently submitted materials. This addendum may or may not have been seen by the Recognition Committee at this time. 

83. On July 17, 1995. the Recognition Committee met again. Representatives of both the "Eno Occaneechi Indian 
Association" and the "Occaneechi Band of the Saponi Nation" were delivered presentations. 

84. The Recognition Committee voted to deny State recognition to the "Occaneechi Band of the Saponi Nation" citing 
Petitioner's failure to meet the required five of the eight criteria and failure to establish the requisite 200 year link. 

85. On August 28, 1995, the "Occaneechi Band of the Saponi Nation" filed Notice of Appeal to the full Commission. 

86. In September of 1995, this appeal was presented to the full Commission, but the deliberations and decision was 
postponed to the December meeting. 

87. On December 8, 1995, the appeal was heard by the Commission. By 14 to I, the Commission voted to uphold the 
decision of the Recognition Committee to deny State recognition to the "Occaneechi Band of the Saponi Nation." 

REQUIREMENTS FOR TRIBAL RECOGNITION 

88. In order for the Petitioning Group to be recognized as a tribe, they must satisfy the following requirements: First, 
they must trace their heritage to a tribe indigenous to North Carolina for 200 years. Second, they must meet five of the eight criteria. 
Lastly, they must submit a satisfactory tribal roll. The statute and rules are silent on the issue of the selection of a tribal name. 



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89. These requirements as they will be addressed herein are broken down as follows: 

I. The Eight Criteria 

II. The Tribal Roll 

III. The 200 Year Requirement 

(A) A 200 Year Genealogy 

(B) Tribal Existence in North Carolina 200 Years Ago 

(C) Petitioning Group's Tribal Identity 

IV. Designation of a Tribal Name 

I. The Eight Criteria 

Criterion One : Traditional North Carolina Indian Names 

90. Dr. Daniels, in his review, determined that the Petitioning group had met this criteria. " If this is interpreted to mean 
family names of European origin traditionally associated with people of (total or partial) Indian ancestry in North Carolina during 
the 1700s."" In the Commission's October 1992 review, the Commission Staff noted that it was their opinion that Dr. Daniels 
interpretation of this criteria was correct. 

91. This interpretation appears to be an obvious and reasonable one, since it is a well understood that true original 
Indian names, in almost all instances, have not survived. 

92. Although Dr. Daniels" added the additional factor of requiring the names to date back to "the 1 700s,"" it is reasonable 
and accurate to say that the names should be traditionally known as Indian names. 

93. To meet this criterion, the Petitioner submitted 1 6 affidavits and a number of letters from local residents attesting 
to the fact that the names of Jeffries, Whitmore, Bumette. Martin, Dixon. Parker. Bass. Anderson. Jones. Ha\es. Guy. Day. Ligons. 
Miles, Chavis, Bowden, White, Come, Haith, Enoch, Wilson, McPherson, Hawley, Watkins, and Nash have been known as Indian 
names. 

94. The Petitioner also submitted numerous historic documents which showed that names which are on the tribal roll 
have been involved with various authorities as people of Indian heritage. 

95. Examples of the historic documents which were submitted to show that the Jeffries and Guy names were known 
as Indian names are the following: 

(a) Senate Document 144 which identities a large number of Guys and several Jeffries as Indian. 

(b) Court documents specifically identifying Mourning and Sally Jeffries as Indian. 

(c) Simon Jeffries. Revolutionary War soldier, was identified as an Indian. 

(d) William Guy. a Revolutionary War soldier, was identified as an Indian. 

96. In the Recognition"s Committee meeting of August 24. 1995. the Committee determined that while the names on 
this Petition are traditional in their geographic area, "the Petitioner has not demonstrated that an\ of its traditional names w hich are 
indisputabK connected to the group have ever been identified as Indian." 

97. The undersigned disagrees with the Commission and finds that the Petitioning Group has submitted documents 
which are valid evidence to show that these names have been known as Indian names in modem times and were known as Indian 
names historicall). 

Criterion Two : Kinship relationships with other recognized Indian tribes; 

98. Dr. Daniels found the evidence for this criterion to be slight. Staff found that this criterion had not been met. 

99. A review of the data submitted by the Petitioning group shows that there were many marriages between families 
of the Petitioning group and families who are purportedly Indian and white. However, this criterion requires kinship \\ ith other 
recognized tribes. While there are one or two instances where a marriage (or a parent) is alleged to be Cherokee (a recognized tribe) 
the evidence is scant. 



13:13 NORTH CAROLINA REGISTER January 4, 1999 1082 



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100. It is. therefore, found as fact that Criterion Number Two has not been met. 

Criterion Three : Official records such as birth, church, school or other recognizing people as Indian; 

101. Dr. Daniels found this criterion to have been met but Staff and the Committee did not. 

102. The Petitioning Group submitted a large number of birth certificates altered to show the race as Indian. These birth 
certificates meet the definition of "official records" and constitute evidence under this Criterion. They do not, however, weigh very 
heavily because they are self-declarations made close to (or during) the time the Petitioning Group was seeking tribal recognition. 

103. The Petitioning group submitted a Death Certificate for John R. Jeffries. This is valid documentation for this 
Criterion. However, while John R. Jeffries is probably a member of this Jefft^ies family, he has not been adequately identified as an 
ancestor of anyone connected to the Petitioning group. 

104. The Petitioning group also submitted Death Certificates of two Whitmore babies indicating that they and their 
parents are Indians. These certificates were not completed at or near the time the group is pursing tribal recognition. These are valid 
documentation under this Criterion. 

105. The Petitioning Group also submitted a number of census and voting records showing names of ancestors of the 
group and identifying them as Indian. These are valid documentation under this criterion. 

106. For example, the 1870 Census of Green County. Ohio shows Shadrack, Daniel and Rebecca Jeffries and their 
children as Indians and Uriah. Caroline, John and Mason Jeffries as Indian. 

107. The Petitioning Group submitted approximately five court case reports reflecting instances when members of the 
Jeffries Clan in Ohio and Indiana were denied the right to vote because they were black. This denial also caused the Jeffries children 
to be denied admission to white schools. The Jeffries men sued and the courts consistently ruled that they were Indian and white and 
not black. These court cases were considered b\ the Commission under Criterion Four (letters or statements from State or federal 
authorities). It is not clear that these could not be used to satisfy' more that one criterion. 

1 08. However, even assuming that the court cases can not be considered tw ice. it is found as fact that the census records, 
voting records (showing many names) and two death certificates, constitutes sufficient evidence to meet this criterion. 

Criterion Five: Anthropological or historical accounts tied to the tribes' Indian ancestry; 

109. Dr. Daniels found that this Criterion uas met. Dr. Claggett found that the historical narrative was accurate. 

1 10. The 1992 Staff review, however, stated that the problem with the Petitioning Group's submissions for this criterion 
was the failure to prove clear descent of current members. This is an invalid reason for denying this criterion. 

111. It is axiomatic that a Petitioning Group which is submitting documentation on the histon. of a tribe is submitting 
that data for the tribe from which it claims descent. Proof of that descent, however, is not required at this place in the submissions. 
The issue of whether or not the Petitioner can prove descent from these tribes is a separate issue and not part of this criterion 

112. It is found as fact that this criterion does not require a showing of descent. 

113. The tribes about which the Petitioning Group has submitted historical and anthropological data are the Saponi, Eno, 
Occaneechi, Tutelo. and Catawba. The historical and anthropological histories of these tribes has been clearl) presented and 
documented and verified by the State Archeologist. 

114. It is found as fact that Criterion Five has been met. 

Criterion Seven : A nv other documented traditions, customs, legends, etc. that signifv the tribes' Indian heritage : 

115. Dr. Daniels found that this criterion was not met. He stated, "...the Petition does not demonstrate the transmission 
of a sufficiently large number of interrelated practices of Indian origin to differentiate the petitioners from other people who are able 
to trace their ancestry to rural pre-colonial America." 



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116. Ms. McLamb. the Staff Reviewer, testified that meeting this particular criterion would be ven, difficult because 
traditions specific to tribal practices would be ver> hard to find. Nevertheless, this is a criterion which the Petitioning Group must 
attempt to meet. 

1 1 7. After reviewing the data, the undersigned agrees that this criterion has not been met. 

II. The Tribal Roll 

118. I NCAC 15 .0214 requires that a Petitioning group must submit a tribal roll listing (a) the names and addresses of 
the people and (b) the relationship of each one to their ""kinship ties." 

1 1 9. One Staff review stated that there were too many surnames on the roll and the petitioning group should concentrate 
the geneologies (kinship ties) of the major families. 

120. This roll was submitted in at least two formats. The kinship ties were shown, albeit in a handwritten format, on the 
first submission of a tribal roll. 

121. Additionally, many of the names on the tribal roll appear on the Genealogical Charts which are attached hereto and 
which were created from the raw data submitted by the Petitioning Group. 

122. Although the Petitioning Group could have shown kinship ties in a more presentable wa\. the\ did show kinship 
ties as required. 

123. The undersigned has found no listing of addresses. There is. however, no indications that the Commission has 
denied this requirement because of the absence of addresses. 

124. It is found as fact that, subject to the submission of addresses, the evidence is adequate to meet this requirement. 

III. The 200 Year Requirement 

125. As noted above, in order to gain tribal recognition, the Petitioning Group must trace its ancestr> back at least 200 
\ears. It must then prove its tribal identits b> showing that its ancestors were from a tribe indigenous to North Carolina 200 years 
ago. 

(A) A 200 Year Genealogy 

126. There are two priman, famiK geneologies incorporated into this decision. These are the two most thoroughly 
researched families of the Petitioning group, the Jeffries and the Guys. 

127. Attachment A is the Jeffries" Genealogical Chart. Chart Number One. The information shown thereon and the 
legend on this chart are hereby found as fact. 

1 28. Attachment B is the Jeffries Genealogical Chart. Chart Number Tw o. The information show n thereon and the legend 
on this chart are herebv found as fact. 

1 29. Attachment C is the Guy Genealogical Chart. The information shown thereon and the legend on this chart are hereby 
found as fact. 

1 30. The information. famil\ relationships, and status of ""Indian"" show n on these charts was distilled from the raw data 

submitted b\ the Petitioning group. No name was placed on these charts unless ev idence was found to satisfactoriK show that the 
person existed and to show his or her place in the families. 

131. As is noted in the legends, these genealogies trace members on the current tribal roll to people who ha\e been 
identified as Indian without regard to tribal identity. 

132. The parameters to be used in interpreting a genealogical stud> have not been spelled out in the Commission"s 
rules. The undersigned has established parameters for the construction of these genealogical famil\ trees. 



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133. No name on the chart was shaded to indicate status as "Indian"" unless adequate documentation was found to verify 
this status. 

1 34. The delayed birth certificates which show "Indian"" as the race, were used to verify the relationships of people on 
the Genealogical Chart. However, they were not used to prove that the people were Indian because they were altered at or near the 
time the Petitioning Group was seeking tribal recognition. 

135. The kinship relationships claimed back to approximately 1 875 are taken as true. This judgment was made because, 
using 25 years as a generation, a person now alive at age 60 (bom 1938), would have knowledge of his parents (bom 1913), and his 
grandparents (bom 1888). His parents would know of their own grandparents (bom 1863). In other words, it is a reasonable 
proposition that people now alive have memories and first hand reports of ancestors going back approximately to great grandparents. 

136. The people who have been identified in historic records as Mulatto, Yellow, Colored. Issue or Free Issue, may well 
indeed be people of Indian heritage as the Petitioner asserts. However, for purposes of these genealogical charts the only individual 
who was deemed to be Indian with such a designation was Grief Jeffries. Grief Jeffries was identified in an ancient document as 
a "Free Woman of Color."" Because of this identification, because she had two sisters who were specifically identified as Indian, and 
because her father was identified as Indian, she has been attributed with the designation '"Indian."" 

137. There are many smaller, abbreviated geneologies that can be gleaned from the evidence presented. They do not, 
however, contain sufficient information to determine where they might be placed on the master geneologies. 

138. As to the Guy Genealogical Chart, although there have been many marriages between the Jeffries and Guy families, 
the evidence used to compile the Guy Chart does not trace back in an unbroken manner from 200 years ago to a current tribal member. 
The break in evidence is represented by the dotted line. 

139. All of the people who appear on these Charts, particularly those who have been identified as "Indian"' have been 
placed there only after an exhaustive review of the documentation which has been submitted. For example, several of the seminal 
ancestors, such as Andrew and Drur> Jeffries, have been studied in detail. 

140. Andrew Jeffries (c. 1730) has been found to be an Indian because he was reported as being a person of white and 
Indian blood in the depositions submitted as part of the Parker Jeffries y. Ankeny Case. 

141. The deposition of Patsy Robinson states: 

Question 6 - Of what blood was Sally Jeffries? 

Answer - She claimed to be of White and Indian and I never heard anything to the contrary. 

Question 8 - Of what blood was Andrew Jeffries? 

Answer - He claimed to be as above-stated conceming Sally Jeffries. 

142. The deposition of Henr\ Wyche states: 

Question 4 - Who was the father of Sally Jeffries? 

Answer - Andrew Jeffries was the reputed father. 

Question 5 - Of what blood was Andrew Jeffries? 

Answer - 1 believe of Indian and White. 

143. There are other pieces of evidence which also indicate that Andrew (c. 1730) was Indian: 

(a) Clayton Jeffries, who has been identified as Indian, identified has ancestor "Andrew"" as being 
a land owner in the Pleasant Grove area. 

(b) Macklin Jeffries who has been identified as an Indian, identified his grandfather "Andrew"" as 
being a land owner in the area. 

(c) Andrew Jeffries" granddaughters, Sylvia and Betsy stated that they get their Indian heritage from 
grandfathers on "both sides."" (Although Senate Document 144 identifies Simon Jeffries as 
"grandfather"" who fought in the Revolution, Sally and Betsy"s grandfather was actually Andrew, 
another Revolutionary War soldier). 

(d) Andrew"s will identifies his children, in part, as being SalK. Mouming. Grief, and Drur>. Sally. 

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Mourning, and Grief have been identified as Indians, 
(e) Andrew lias three brothers, three daughters, tlve grandchildren, and three great grandchildren 

who have been identified as Indian. 

144. It is found as fact that Andrew Jeffries (c. 1 730) was Indian. 

145. Another originating ancestor for the Jeffries group is Andrew's son. Drun. Jeffries. 

146. Looking at Drur} brietl\ with regard to his father's identification, indicates that Drur>"s will identifies his children 
as including Betsy and Sylvia. Bets\ and Sylvia were identified in historic documents and data as Indian. 

147. Drur\ therefore has three sisters, two daughters, (and a father) who have been identified as Indians. 

148. It is found as fact that Drury Jeffries was Indian. 

149. It is found as fact that the Jeffries" family has been traced from ancestors circa 1 700 to people on the current tribal 
roll. 

1 50. It is found as fact that the Jeffries family has been traced to people on the current tribal roll from ancestors identified 
as "Ind u.n." 

151. It is found as fact that the Guy family has not been traced back from people on the current tribal roll to ancestors 
200 N'cars ago. 

(B) Tribal Existence 200 Years Ago In North Carolina 

152. Establishing the 200 year link to a tribe indigenous to North Carolina requires an analysis of the status of tribes as 
they existed in North Carolina 200 \ears ago. This is not as clear and obvious as it ma\ at first appear 

1 53. State Archeologist Steve Claggett determined, and the undersigned finds as fact, that the Historical Narrative Section 
of the Petition is as accurate as current research allows. The follow ing findings of fact have been distilled from the narratives as well 
as from the raw data submitted by the Petitioner. 

154. Attachment D is a map showing North Carolina and parts of South Carolina and Virginia in 1720. It indicates 
colonial and Indian settlements. The map is reproduced from the book, " The Indians New World: Catawbas and Their Neighbors 
from European Contact Through The Era of Removal" and is found as fact, (see n. Attachment E) 

1 55. Attachment Dl is the same map, enlarged, and showing the appro.ximate location of certain counties of significance 
as well as the Catawba River Settlement. This map is found as fact. 

1 56. Excerpts from data submitted b\ the Petitioning Group are used throughout this section. The\ are referenced by 
the use of a lower case letter with full citations listed on Attachment E. 

157. The European influx into the North American continent had a catastrophic effect on the Native American peoples. 
particularK along the eastern seaboard. As more and more settlers moved in, tribes were displaced from their lands. Man) tribes w ere 
decimated both by disease and conflict. 

1 58. Generally, the early 1 700s was a time of movement among tribes in the Virginia, North Carolina and South Carolina 
Piedmont Area. 

159. There was a continuous migration of both tribes and remnants of tribes. The\ banded together in an effort to find 
a safe and acceptable place to live and to survive in the face of increasing pressure from encroaching settlers and tribal population 
loss. 

160. As the tribes continued to lose size and power, this tribal migration became more and more common. Remnants 
of tribes consolidated with other larger tribes for survival and sometimes when the tribes could not successfulK live together, \arious 
subgroups mov ed wa\. 



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161. Frequently, tribal identities were lost and tribal names, to the extent that they existed, were also lost. 

162. When European explorers first entered the Piedmont area, they found it occupied by several small Indian tribes 
sharing a common culture and a similar language. Those tribes included (but are not limited to) the Occaneechi, Saponi, Catawba. 
Santee, Waccamaw, Sissipahaw, Keyauwee, Shoccoree, and Sara. 

163. These tribes spoke a variant of the Siouan language family, with the Occaneechi and Saponi both speaking the 
Northern dialect, and the Catawba, Santee, and Waccamaw speaking the Southern dialect. 

164. The Europeans were often perplexed at the various languages and dialects they encountered among the native 
people. One historian reported that the languages and dialects of the early Virginia Indians were so varied that they could not 
understand one another and had to use the Occaneechi language as a '"ceremonial" common language. He stated: 

According to this historian the tribes of Virginia spoke languages differing so widely that natives 
"at a moderate distance" apart did not understand one another. They had however a "general 
language" which people of different tribes used in their intercourse with one another... The 
general language here used is that of the Occaneechis, though they have been a small nation 
every since these parts were known to the English... (t)his general language was used by the 
"priests and conjurors" of the different Virginia tribes in performing their religious ceremonies... 
(see a. Attachment E) 

165. The Occaneechi tribe had been large and prominent among the Piedmont Indian Tribes 

166. In 1670 an early explorer named John Lederer found the Saponis and the Occaneechis living on islands of the 
Roanoke River, runs from mid Virginia south into North Carolina. The historian reported: 

John Lederer. ..a German traveler.. .undertook, at the charge of the colonial government, an 
exploring journey... He made... some interesting discoveries. Starting from the falls of the James 
River, he came, after 20 days of travel, to "Sapon, a village of the Nahyssans" situate on a branch 
of the Roanoke River. These were undoubtedly the Saponas whom Captain Batt visited in the 
following year, the kindred and allies of the Tutalos. Fifty miles beyond Sapon he arrived at 
Akenatzy, an island in the same river., in these Akenatzies we undoubtedly see the Aconechos 
of Lawson, and the Occaneechis mentioned by Governor Spotswood. (see b. Attachment E) 

167. In addition to disease and land displacement, the tribes sometimes suffered from warfare with the settlers. On one 
occasion, the Occaneechis were particularly brutalized when, in the 1670s, several tribes including the Occaneechi were the victims 
of a settler's rage. 

168. Nathaniel Bacon had developed a dislike of Indians and visited violence upon them. He conducted raids on the 
Occaneechi living near Clarksville, Virginia, attacking their village on the Roanoke River. He wrote: 

What we did in that short time and poor condition we were in was to destroy the King of the 
Susquahannocks and the King of Oconogee and the Manakin King with 1 00 men, besides what 
was known to us. The King's daughter was to prisoner with some others and could have brought 
more, but in the heat of the fight we regarded not the advantage of the prisoners nor any plunder, 
but bum"t and destroid all. And what we reckon most material is that we have left all nations of 
Indians where we have bin ingaged in a civill warre amongst themselves, so that w ith great ease 
wee hope to mandage this advantage to their utter ruine and destruction. (5^1? c, Attachment El 

1 69. The Occaneechi did not recover after the attack, and were never the dominant trading tribe the> had previously been. 

1 70. Those members of the tribe who survived the attack came to live on the banks of the Eno River near present day 
Hillsborough, North Carolina, which settlement has been uncovered by UNC archeologists. 

171. This Occaneechi settlement was also documented by historians. In 1 701 John Lawson, Surveyor General for North 
and South Carolina, ttaveled into North Carolina and visited this settlement near Hillsborough. 

1 72. The Saponi, Tutelo and Occaneechi Tribes ultimately banded together and became as one under the name of Saponi. 



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A historian reports that the Saponis and Tuteios who had been living in the war path betv\een the northern Iroquois and southern 
Catawba, crossed the Dan River into southwestern Virginia to escape and move awa\ from the warring tribes. The> moved to live 
near the Occaneechi who. prior to Bacon"s raid, had been iiv ing on the islands in the Roanoke River: 

In their frontier position at the base of the mountains the Saponi and Tutalo were directK in the 
path of the Iroquois whose war trail toward the Catawba crossed the Dan at a point between the 
mouths of Smith River and Mayo River... unable to withstand the constant assaults of their 
northern enemies, the two western tribes abandoned their villages and removed to the junction 
of the Staunton and the Dan where the> established themselves adjoining their friends and 
kinsmen the Occaneechi whose historv thence forth merges into theirs. 

The Occaneechi of whom more will be said later although now themselves reduced b\ the 
common enemv had been an important tribe. They occupied at this time a beautiful island 
about four miles long called by their tribal name lying in the Roanoke a short distance 
below the forks of the stream of what is now Mecklenburg County Virginia. Above and 
below Occaneechi Island in the same stream were two other islands of nearly equal size. 
The Saponi settled on the lower of these w hile the Tutalo took possession of the upper one 
just at the confluence of the two rivers. How long the\ remained there is not definitelv known 
but it is e\ ident thev were not able to hold their position even with the river on all sides as a 
protecting barrier. For in 1701 all three tribes were far down in Carolina uniting their 
decimated forces and preparing to remove into the English settlements. {See d. Aftuchmenr El 

173. Other historians have also reported this same history : 

Two other Indian tribes of which there is little historic record live in Mecklenburg County 
(Virginia) for some 30 years. These tribes v\ere also of the eastern Siouan group and kinsmen 
and allies of the Occaneechi. These tribes were known at the Tutelo and the Saponi. ..after 
crossing the Saponi (Staunton) River several times and climbing several smaller mountain ranges 
they came to the Tutelo village located on the head waters of the Roanoke River... this site was 
probably on the present VirginiaTMorth Carolina State line... The seat of the Tutelo and Saponi 
tribes at the foot of the mountains was directly in the path of the Iroquois" war trail tov\ards the 
Catawba... unable to withstand the constant assaults of the Iroquois these tribes about 1671 it 
is presumed on the invitation of the Occaneechis their kinsmen and allies abandoned their 
villages and removed to the junction of the Dan and Staunton Rivers in the Occaneechi domain. 
The Tuteios were assigned the island above Occaneechi Island and the Saponis were assigned 
the island below Occaneechi Island. 

Henceforth the historv of the three tribes, the Occaneechi. the Tutelo and the Saponi merges. 
(see e. Attachment El 

I 74. In another effort to survive, many tribes began to enter into treaties with the colonists, even moving onto lands w hich 
were designated and assigned to them bv the new colonials. 

1 75. On May 29. 1677. the Indians of Virginia and North Carolina entered into the Middle Plantation Peace Treaty w ith 
the Governor of Virginia. Herbert Jeffries. The Saponis are among the signators. That treaty stated, in part: 

With the several Indian Kings and Queens and (illegible) Subscribers hereunto made and 
Concluded at the Camp of Middle Plantation, the 29'*' day of Mav. 1677: being the day of the 
most happy birth and Restauration of our (illegible) Sovemigne Lord, and in the xxix vear of his 
said majesty's reign. 

By The Right Honorable Herbert Jeffries, Esquire. Governor and Captain General of His 
Majesty's Colony of Virginia: Present the Honorable Sir John Berry and Frances Morrison. 
Esquire. His Most Sacred Majesty's Commissioners appointed under the great seal of England 
for the Virginia affairs, and the Honorable Council of State of the said Colony. This peace treaty 
of 1677 in Virginia is signed b_\: the Queen of Pomunckey. the King of Nottowaycs. the son 
of the Queen of Pomunckey. the King of the Appomattux. the Queen of Wayonoake. the King 



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of the Nanzou Indians, the King of the Nansaticoen, the King of the IManakins. the young King 
oftheSapones. the Chief Man of the Sapones. the Chief Man of the Maherians, the Chief Man 
of the Wahorians. (see f. Attachment E) 

176. In this treaty, Virginia set aside a reservation of six miles square for the Saponi and allied tribes in what is now 
Greensville and Southampton Counties, Virginia, which counties are located along the Virginia/North Carolina State line. <see g. 
Attachment E) 

\11. In 1713. the tribes of Saponi. Eno. Occaneechi. and Shakori entered into another peace treaty. Governor Alexander 
Spotswood of Virginia had established Fort Christianna in Brunswick County, Virginia (on the North Carolina State line), where the 
local tribes were to be taught English and Christianity. The Fort would also be used as a buffer between the settlers and the other 
Indians, (see h. Attachment E) 

1 78. The Fort Christianna Treaty was signed by the Chief men of the Saponi, Stukanox, Occaneechi and Tortero (Tutelo) 
Indians at Williamsburg. Virginia, the 27"' of February. 1713. (see i. Attachment E) 

1 79. The Indians of Fort Christianna were made up of the remnants of these tribes of which the most considerable were 
the Saponis. A historical account reflects what was in fact one of the articles of the treaty: 

"Not finding themselves separately numerous enough for their defense have agreed to unite into 
one body and all of them now go under the name of the Saponis". (see J. Attachment El 

180. On January 27, 1714. Governor Spotswood wrote to the Bishop of London describing Fort Christianana: 

It was then I formed a settlement on the frontiers for ye tributary Indians pursuant to their treaties 
and by the temptation of a fine tract of land of six miles square the building of a fort thereon and 
placing the guard of 12 men and an officer to be assisting to them 1 engaged the Saponi, 
Occaneechi. Stuckanox and Tottero Indians (being a people speaking much the same language 
and therefore confederated together, though still preserving their different rules) immediately 
to remove to this place which I have named Christ Anna, (see k. Attachment E) 

181. Under the Fort Christianna Treaty, the Saponi retained the right to use unsettled land in the region, 
maintaining settlements in both North Carolina and Virginia, (see I. Attachment E) 

1 82. A few years later, all of the tribes who had settled at Fort Crhistianna were identified as "Saponis." In 
1716 .lohn Fontaine documented a trip he made with Governor Spotswood. On April 13, 1716. he writes that he and 
Governor Spotswood set out from Williamsburg. 

April 14. 1716, we set out with a guide for Christiana ... the most outward settlement 
on this side of Virginia... April 15, 1716, the third day. Christiana Fort. Mr. Griffith 
who is an Englishman is employed by the Government to teach the Indian children and 
to bring them to Christianity... he hath had good success amongst them. He hath now 
been a year amongst them. These Indians are called Saponi Indians and are always at 
peace with the English", (see m. Attachment E) 

1 83. The Catawbans were not strangers to Fort Christianna and, though their settlement on the Catawba River 
in North Carolina was prospering, they still sued for peace among the colonists. 

That Cheraw chief who arrived in Virginia in July 1715 to make peace for his own 
people was also "impowered b\ the Chiefman of the Catawba Indians" to ask the same 
for them. Since Cheraws had lived in Virginia until recently, this chief was the obvious 
candidate for the initial overtures. Once channels were open, however, Catawba 
leaders superseded him. so that b\ April 1717. Cheraws were last in a list of eight 
groups represented at Fort Christianna, Catawbas first. Whitmannetaughehee, "the 
Chief Man of all the Catawba Nation," dominated the proceedings at the fort. He alone 
had his name recorded by the Virginia scribe; he alone met with Spotswood on the 
governor's arrival, (see n. Attachment El 



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1 84. Throughout the early 1 700s, tribes and parts of tribes continued to migrate throughout this area and even 
into the northern colonies. A part of the Saponi Tribe moved north to New York. 

185. This Northern Saponi migration was documented: 

In the beginning of the 18'" Century the five nations increased to six when the 
Tuscaroras chased out by land hungry English settlers left their traditional home in the 
Carolinas...they brought with them the entire Tutelo and Saponi Tribes later 
commemorated in Tomkins County, Pony (Saponi) Hollow ... is named for them, (see 
o. Attachment E) 

1 86. It is clear from other historic documents, that the "entire" Tutelo and Saponi Tribes did not migrate to New 
York, for this is the same period when the Saponis and Tutelos along with the Occaneechis had settled at Fort Christianna. 

187. During this period and the years that followed, the tribal names and identities were reported in many 
different ways. For example, Kammen (supra) identifies the Saponi as being "Catawban." She writes: 

Ironically, the Saponi and the Tutelos lived in Iroquois as allies of the Cayugas, yet 
they were of Catawban ancestry... (see p. Attachment E) 

188. Historians also reported descriptions of the use of the Saponi, Tutelo and Catawba tribal names: 

The name Saponi ... was generally limited to a particular tribe or aggregation of tribal 
remnants, while the Iroquois named Tutelo, Totero or Todirich-roone, in its various 
forms although commonly used by the English to designate a particular tribe was really 
the generic Iroquois term for all the Siouan tribes of Virginia and Carolina 
including even the Catawba. In 1722, the remnants of all the tribes of Virginia and 
the adjacent parts of Carolina included under this general designation by the Iroquois 
had been gathered at Fort Christiana and were commonly known collectively as 
Christianna Indians or Saponi. (see q. Attachment) 

1 89. The Fort Christianna Indians were reported by historians to be known as both Saponi and Tutelo. 

In 1670 Lederer crossed the country in a diagonal line from the present Richmond to 
Catawba River, on the fi-ontiers of South Carolina, and a year later a party under Batts 
explored the country westward across the Blue Ridge to the headwaters of New River. 
Thenceforward, accounts were heard of Nahyssan, Sapona, Totero. Occaneechi. and 
others, consolidated afterward in a single body at the frontier. Fort Christianna, and 
thereafter known collectively as Saponi or Tutelo. (see n Attachment E) 

190. The tribal names, even as early as 1717, were unclear. The leaders of the five nations in New York wrote 
the Governor of Virginia: 

Those Indians called by the English Cattabaws are called by us Toderichroone. (see 
s. Attachment) 

191 . In a subsequent letter, the Governor of Virginia wrote to the Indian leaders identifying the Fort Christianna 
Indians as Toderichroones, the Indian name for ""Catawba:" 

Tis necessary now to decare the names of the several Nations of Indians which the 
Government of Virginia engages for, and those are the Nottoways. Meherins, 
Nanemonds, Pamunkeys Chichominys, and the Christianna Indians whom you call 
Todirlchroones that we comprehend under the name, the Saponies. Ochineeches, 
Stenkenocks, Meipontskys & Toteroes. (see I. Attachment E) 

192. Throughout the Fort Christianna period, the tribal population at the Fort varied. In 1728. the Saponis 
left Fort Christianna after one of their chiefs was hansed bv the colonists. Like manv other small tribes. the\ went to live 



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with the Catawba Tribe in North Carolina at their growing settlement known as the Catawba River Settlement. 

193 . One historian described the incident which caused this first departure of the Saponis from Fort 
Christianna: 

In 1728 the province tried to stop Saponis from taking revenge on Nottoway 
raiders... resentment deepened a few months later when Williamsburg officials hanged 
a Saponi headman who had committed a crime while intoxicated. In a single stroke the 
colony violated two fundamental tenants of native law: the first against hanging; the 
second against punishing a person for something done while under the influence of 
alcohol. By year's end the Saponi. surfeited with colonial friendship, were on their way 
from Fort Chrisianna to the Catawba River. Men and women weary of angry 
settlers, nosey missionaries and arrogant officials must have found a people the 
colonists were now calling Catawbas a welcome relief Different as this Catawba 
population might be in appearance language and custom, the cultural variation here was 
as nothing compared to the chasm dividing Indians from tobacco farmers, rice planters 
and anglican clergymen. 
(see u. Attachment E) 

194. However, the difference between the Saponis and the Catawbas did not remain "as nothing". The 
Catawbas were a warlike tribe and the newcomers soon discovered that they could not adjust to life in the Catawban 
settlement. The Saponis soon found that they had to leave: 

Indians caught between colonists and Catawba had a real decision before them; which 
was the lesser evil? The splintering that occurred within each group forced to make the 
choice hinted at how hard it was to come up with an answer... 

Those who chose to remain with colonists embarked on a long slow slide into obscurity. 
Well before the end of the (18"" ) Century, chiefs and captains were gone. Pee Dee, 
Cape Fear, and other names were replaced by the non-descript term "Settlement 
Indians" or "parched com Indians..." there were many natives who drifted from one 
isolated backwater to another following maps and schedules they alone knew... (see v, 
Attachment E) 

1 95. The Catawba River Settlement, located in North Carolina where the Catawba River enters into what was 
then known as Sugar Creek, was growing and soon became an important stopping point on the trading route. The Catawbas 
welcomed and encouraged newcomers and the Settlement continued to grow in size and power. By the mid 1700s the 
Catawba River Settlement was flourishing: 

While learning their way around, the newcomers came across many others like 
themselves people bom in some faraway and now abandoned (if not forgotten) town, 
people who looked, acted, spoke, and dressed differently from their hosts. The 
Shawnee headman who observed in 1717 that "there were many Nations under that 
[Catawba] name" would have found many more two or three decades later. James 
Adair heard more than twenty different languages spoken by the Indians in the Catawba 
River settlements when he traded there between 1 736 and 1 743. Adair listed only Eno, 
Cheraw, Congaree. Natchez. Yamasee. Wateree. and Coosah (probably Creek), but to 
these he would have added Saponi, Caccamaw. Pedee. Santee. Saxapahaw, Keyauwee, 
and many others, (see w. Attachment E) 

196. The Catawbas were powerful and feared, and kept alliances with other tribes, including the Saponi, by 
offering them protection. 

Saponis who fell afoul of Virginia boasted that Catawbas had promised them 
sanctuar}' and even had swom to help them attack the colony. Nor were Catawba 
efforts limited to protecting people from colonists. Tuscaroras. NottowaNS. and 
Meherrins also leamed that raids on Saponis brought reprisals from Catawba war 
parties acting on behalf of their Saponi "Brothers and Friends." Similarly. Cherokees 

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who killed a Cheraw found that the\ had to answer to Catawbas. (see x. Attachment Ei 

197. Some tribes remained at the Catawba River Settlement and as time went on. the\ became Catawban: 

Among those who remained a traditional narrow ethnic allegiance slow K faded to be 
replaced by a broader Catawba identit\...long before the American Revolution most 
peoples in the nation had begun to speak to one another and to the world w ith a single 
voice, (see y. Attachment E) 

198. In 1732, a few years after the\ had arrived, the Saponis left the Catawba River Settlement and returned 
to Virginia. 

Not all natives found life in the Catawba Nation to their taste. In May 1732 the 
Saponis and a few Cheraws visited Lieutenant Governor Gooch to ask permission to 
return to Virginia. Permission granted they erected a fort some where along the 
Appamatic or Roanoke River and settled back into familiar territory, (see :. Attachment 
E) 

199. However, this return to Virginia found the Saponis once again confronted by the problems of numerous 
settlers who were not happy to have Indians nearby. 

The problems that had driven Saponis from Virginia three years before the invitation 
of the Iroquois force to move north and join the six nations soon returned to plague 
them... Saponis under this pressure soon broke into fragments, some moving in with 
the North Carolina Tuscaroras. others seeking out a powerful friend like the trader 
William Eaton or the former Virginia executive Alexander Spotswood. The rest 
accepting the invitation of the Iroquois force to move north and join the six nations. 

Saponis never told Spotswood, Tuscaroras, or the Iroquois why they left the Catawbas, 
and it is impossible at this remove to pinpoint the source of their unhappiness. The 
doubts raised about these friends and brothers in 1727 apparently were confirmed once 
in the Nation. One Tutelo woman, daughter of a headman, took poison soon after 
moving south, "fearing she should not be treated according to her rank." (see aa. 
Attachment E) 

200. In 1738. Fort Christianna was closed. The Indian population at the Fort which had often varied, was 
temporarily reduced and Virginia abrogated the Treaty. The lands around the Fort vsere patented out under a treaty provision 
allowing Virginia to sell the land if the population of the tribe fell below a certain number. 

201. Despite the breakup of the Fort, some members of the Saponi Tribe remained in the area of the Fort, 
maintaining their town there. Junckatapurse. until 1743-1755. 

202. Some of the confederated Saponi tribal peoples were seen to be living in Southern Virginia not far from 
the Meherrin River which runs through Mecklenburg, Brunswick, and Greensville Counties. Virginia close to where the 
Fort had been. 

203. During this period, some of the Saponi people made a second attempt to live at the Catawba River 
Settlement in North Carolina. For reasons not clearK known, that attempt also failed and in 1 748 the Saponis returned once 
again to Virginia, (see hh. Attachment E) 

204. Even though the Catawbans and the Saponi were Souan speaking Piedmont Indians, their incompatibility 
was sure: 

The Saponi experience helps to locate the limits of the Catawbas' abilities to absorb 
outsiders. Though Siouan-speakers and Piedmont peoples. Saponis were descended 
from the Monacan and Mannahoac stock, branches quite distinct in speech and custom 
from their southern cousins. It would appear, then, that Catawbas could incorporate 



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small and culturally variant peoples, a Natchez and Yamasee band, or sizable groups 

that were close relatives, like Cheraws and Waterees, but that large and foreign 

populations proved more difficult. Precisely how Saponis discovered this 

incompatibility is unclear: but they learned very quickly, and took steps to correct their 

mistake. 

(see cc. Attachment E) 

205. By the 1 750s, some remnants of Saponi had also settled in North Carolina. The North Carolina Colonial 
records of 1 754 outlined the status of various counties. Under Granville County, which is just south of the Roanoke River, 
is the following entry: 

No arms or ammunition in the stores. There are almost 12 or 1 1 

Saponi men and as many women and children in the county, (see dd, Attachment E) 

206. Indians were also reported in Alamance County and Saponis were reported in Granville County: 

In reply to your letter of April 5"" and accompanying documents relative to (illegible) 

Indians in Alamance County, North Carolina I would say that I have only a few notes 

bearing on the subject. We know that some small Siouan tribes lived in this 

neighborhood in the latter part of the 1 7"" Century and early part of the 1 8"^ and that as 

late as 1756 there was a small body of Saponi Indians in the neighboring county of 

Granville. 

(see ee. Attachment E) 

IQl. In 1 757 history records that some Saponis were still in Virginia. In an interesting report they stated that, 
though they had "buried their hatchets," the French had so inflamed them that they now wished to join "Colonel 
Washington" in his fight: 

The President gave an audience to King Blount and 33 Tuscaroras, Meherrins, two 
Saponis, and 13 Nottoways, who came in company the day before to Williamsburg; 
That Captain Jack the Chief of the Tusks next to the King who is old and feeble 
produced and delivered to him a letter fi-om Colonel Washington inviting and 
encouraging them to come and join us against our enemies and said what the Colonel 
had writ was very agreeable to them... they had buried deep underground their guns, 
tomahawks and hatchets but exasperated and inflamed by the shocking cruelties 
exercised on their brethren by the French and their base Indians they had now concurred 
in raising up their arms... (seeff. Attachment E) 

208. It is found as fact that the Saponis, the Tutelo, the Occaneechi and the Catawbas were indigenous to North 
Carolina at least 200 years ago. 

209. It is found as fact that in the late 1600s the Occaneechi. Tutelo and Saponi Tribes merged. 

210. It is found as fact that in the era of Fort Christianna, the Occaneechi and Tutelo along with other tribes 
were subsumed under the tribal name of Saponi. 

211. It is found as fact that the Catawbas were present at Fort Christianna at least in pursuit of peace 
agreements. 

212. It is found as fact that the Catawba Tribe was joined at the Catawba River Settlement by many other tribes 
including the Saponi and remnants of tribes whose identity eventually became closely associated with the name, Catawban. 

213. It is found as fact that the Saponis moved into the Catawba River Settlement in North Carolina on at least 
two occasions. 

C. Petitioning Group's Tribal Identity 

214. Indian people were rarely identified as "Indian" in historic documents and were very rarely identified 

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tribal 1>. 

215. Maintaining tribal identit\ was problematic for many reasons. For example, it had been the polic\ of the 
Government to abolish Indian tribal unity. D.M. Browning. Commissioner of the Department of the interior. Office of 
Indian Affairs wrote on Januar> 16. 1896. in pertinent part: 

1 am in receipt of your letter of January 9. 1896 from one P.H. Head, a Catawba Indian, 
of Sanford, Colorado, submitting a Petition purporting to have been signed by himself 
and 25 others. ..asking to be united vsith the Ute Indians. ..In reply I have to say that 
it is the policy of the government to abolish the tribal relations of the Indians as 
fast as possible and to settle each Indian upon a separate tract of land that he can 
call his own, to the end that he may become self-supporting and independent of 
government bounty, (see gg. Attuchmeni E) 

216. In the early 1700s. a European settler in Virginia by the name of John Jeffries married an Indian woman 
later identified as Judith. The> settled in what is now Greensville. Counts Virginia. We know of this marriage through the 
will of John Jeffries and we know of Judith Jeffries' heritage through identification of her great grandson, James Jeffries. 

217. The Greensville County location where John and Judith settled was about one mile from the road which 
led to Fort Christianna. It was also about four miles from the North Carolina line, and a short distance from the Saponi town 
of Junckatapurse. 

2 1 8. John and Judith Jeffries had a number of children including John, Andrew, Nathan, Shadrack, and Simon, 
which we also know from John's will and the land grants he made to his sons. 

2 1 9. The Petitioning Group submitted numerous documents placing the Jeffries and Guy families in Greensville 
County. Virginia. Some of these historical documents are the following: 

(a) The deeds of John Jeffries. Sr ( 1 789); 

(b) Dills' history of Greene County. Ohio, stating that James Jeffreys was bom in Greens\ille 
County, Virginia in 1 82 1 : (see hh. Attachment E) 

(c) The Whitley County Indiana record stating that Herbert Jeffries is a native of Greensville County, 
Virginia; (see ii. Attachment E) 

(d) The deposition of Susan Wooten stating that she grew up near the mother of Macklin Jeffries 
who lived in Greensville County. Virginia. 

(see jj. Attachment E) 

(e) The deposition of Shadrack Jeffries attesting that he came from Greensville County, Virginia and 
was a playmate of Macklin Jeffries. 

(see kk. Attachment El 

(f) Dr. McDowell's letters stating that the Gu>s with their Jeffries" wives left their tribe and went 
to Greensville County, Virginia. 

(see II. Attachment E) 

220. The Petitioning Group has also submitted man\ documents showing that the Jeffries and Gu\ families, 
then living in Greensville Countv, Virginia were Indians. 

221. James Jeffries, a great grandson of the original John Jeffries mo\ed from Greensville Counts. Virginia 
to Xenia. Ohio. He became a well-known figure localls because of his cabinet making and fiddling. He lised to be o\er 
100 years old and each \ear on his birthda\ the local newspaper wrote stories of his celebration. 

222. In a Xenia, Ohio newspaper article celebrating James Jeffries' 96"' birthdas. the reporter stated: 



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Mr. Jeffries has Indian blood in his veins. He is Tutelo-Saponi and traces his ancestry 
back to Pocahontas, (see mm. Attachment E) 

223. In another Xenia. Ohio Newspaper article concerning the 100"" birthday of the same James Jeffries, the 
report stated; 

And so the Indian strain has not only brought him hardihood but has taught him how 
to live best to preserve health and youth. It was the head of the Jeffries family in this 
country who introduced the Indian blood into the family, when he married an 
Indian maiden of the same tribe to which Pocahontas belonged. And although that 
was several generations back, the hardihood of the red man"s race crops out in this 
wonderfully preserved centenarian, (see im. Attachment E) 

224. This newspaper account is the only time the tribe of Pocahantas (commonly called the Powhatans) is 
identified. There is no other indication that the Jeffries family was Powhatan. The Powhatans, however, were located in 
the same area of Southeastern Virginia, Jamestown and Williamsburg, as were the Saponi people. 

225. In fact, historic accounts of tribes were not always clear. One report confused the Saponis with Chief 
Powhatan who. history records, was the father of Pocahontas. In an account entitled the History of the American Indians 
published in London in 1 774, the author stated in pertinent part: 

In Virginia reside the remnant of an Indian Tribe who called themselves Sepone...our 
early American writers have bestowed on these Indians an emperor, according to the 
Spanish copy, calling him Powhatan. 

(see 00, Attachment E) 

226. Clayton Jeffries who lived in Alamance County. North Carolina in the early 1900s gathered historical 
evidence from the old people who were alive and remembered older times; 

Hudson Jeffries moved to this count>' from Virginia a number of years ago. His sons 
names were Simon Jeffries and Hudson Jeffries also. They met on election day to vote. 
This was before the Revolutionary War 

Jennie Jeffries, before she married a Com, remembers General Washington. We 
understand they moved from Jamestown, Virginia on wagons hand made all of wood. 
Not every skeen nor box. And went to school with white people at that time. 

There was Chavis came with Mr. Redin. Chavis drove a six-horse train across the James 
River before the Revolutionary Wan 

This is what Rufers Jeffries knows about it from his fore parents. Young Hudson 
Jeffries was his father. He said that he had heard the people speak of Captain John 
Smith, (see pp. Attachment E> 

227. Clayton Jeffries wrote a series of letters attempting to get a school for his people whom he purported were 
Indians. On Januar\ 17, 1934, he wrote; 

I noticed a record of Indians in the daily news some time ago. You failed to have all of 
them because there are several hundred of us in this county that is not on record and we 
want to get in touch with you because we have no school for our children... (see qq. 
Attachment El 

228. In another of Cla>ton Jeffries' letters, he states that he is glad the government can trace his people back 
to 1758, the date which was noted in reference to the Tutelo-Saponi people, (see rr. Attachment E) 

229. Other accounts document that some ancestors of the Petitioning Group were Catawban. 

230. DilPs History of Greene County, Ohio, dated 1 88 1 . identified Uriah and Silas Jeffries who were closely 

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related to James Jeffries, as descendants of the Catawba Tribe of Indians, (see ss. Attachmeni E) 

231. In 1869, Dr. Joseph McDowell ( who was married to a Guy woman) wrote to the Commissioner of Indian 
Affairs on behalf of the Gun family and their Jeffries wives, who lived then in Macon County. North Carolina. Dr. 
McDowell requested financial assistance for these ""70 souls"" to move west. Dr. McDowell writes in part: 

I take the liberty of addressing to you a fev\ lines on behalf of a remnant of the tribe of 
Catawba Indians, a part of whom reside in North Carolina. Tennessee, and Georgia. 
Some 60 or 70 years since the\ left their tribe and went to Greenville County. Virginia 
and then removed to Orange County. North Carolina and when the Cherokee treaty of 
1 828 was made and the Counr\ of Macon. North Carolina was acquired they sold out 
in Orange and moved to Macon County. North Carolina where they purchased lands 
and have remained ever since, (see It. Attachment E) 

232. This letter included a list of all of the 70 people, most of whom were Guys and some of whom were 
Jeffries. 

233. This letter was also discussed in Senate Document 144 which again documented the list of names and 
stated that the people whose names were on the list were descendants of two Revolutionary War Soldiers, Catawban Indians; 
Simon Jeffries and William Guy. (see iiu. Attachment E) 

234. Marriage records show that during the time they lived in Orange County, North Carolina the Guy and 
Jeffries families intermarried frequently. 

235. The Petitioning Group submitted many documents which verify' that the Greensville County. Virginia 
settlement eventually broke up and the people moved to Alamance, Orange. Caswell and Macon Counties. North Carolina 
as well as to Ohio and Indiana. 

236. It is found as fact that the Jeffries family traces their heritage to the Tutelo-Saponi and Catawba Tribes. 
(IV.) Designation Of A Tribal Name 

237. The tribal names used by the Europeans in the 1 8"' and 1 9"' centuries were very comnionK not the same 
names the tribes used for themselves. Before the Europeans came, tribes may not have had names for themselves except 
to the extent it was needed to distinguish themselves from their neighbors. Later, names were developed primaril_\ b\ the 
Europeans, to distinguish one Indian group from another. Those names appear to have been adopted by the Indian groups 
as they found it more and more necessary to interact with the Europeans. 

238. As tribes began to organize in modem times, it has been common practice for the tribe to adopt a name 
if their original tribal identity has been lost. For example, the Haliwa-Saponi crafted their name from the Counties of Halifax 
(Hali)and Warren (Wa). 

239. Commission members and Staff testified that the name adopted b\ a present da\ tribe is not a critical 
factor. 

240. In his review of the Petition, Dr. Daniels stated: 

The choice of a name for the present tribe is, I believe, a matter outside the strict 
application of the procedures though the Review Committee may wish to make some 
recommendation on that matter. 

24 1 . In its original Petition, the Petitioning group described how it settled on the tribal name: 

When the community decided that it was appropriate to adopt an Indian name to 
describe itself and to declare its Indian-ness to non-Indians living around it. its 
leadership chose to recognize the community "s relationship to the Siouan tribes from 
which the\ are descended and who lived in the area of Pleasant Grove at when the 
Europeans arrived, (sic) Both the Eno and the Occaneechi tribes are known to have had 
settlements in the area into the historical period, and the communir\ chose the name 



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Eno-Occaneechi for that reason. 

The name Saponi might have seemed to be more accurate, given the communit>"s direct 
descent from the Saponi Hving around Fort Christianna. The Association did not 
consider this name, however, because there already existed a recognized Indian tribe in 
North Carolina using that name. The incorporation with the Saponi of the Eno and 
Occaneechi in 1713 supports this choice as logical and appropriate. 

242. Some ofthe evidence indicates an ancient tribal identity as Catawban. In a summation submitted by the 
Petitioners address this: 

Why then do the Occaneechi not call themselves Catawba? The Occaneechi provided 
the Recognition Committee numerous documents proving that in the late 1700s and 
early 1 800s the Catawba name did not designate a tribe so much as a confederation of 
several tribes, including the Catawba proper. When the Occaneechi were identified as 
Catawba, and were identifving themselves as such, they were recognizing their 
relationship to the Catawba confederation, and not claiming to be Catawba in the 
sense that the present day South Carolina tribe is Catawba. 

Finally, what does the law require of a petitioning group in terms of it's name? North 
Carolina Law states that a petitioning group must trace itself to "tribes indigenous to 
North Carolina at least for the last 200 years."" Leaving aside the opinions of experts 
who have examined this petition, there is no legal requirement that a petitioning 
group call itself by the name ofthe tribe it descends from, nor, with the exception 
ofthe Eastern Cherokee and the Meherrin, do any ofthe presently recognized 
North Carolina tribes do so. The Occaneechi have fulfilled the requirement ofthe law 
in this matter in tracing descent from tribes native to North Carolina, and who have 
lived here for hundreds of years. They are not required to call themselves Catawba, and 
have presented to the Recognition Committee their reasons for their choice of name. 

Based on the above Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

I. The Eight Criteria 

1 . The Commission has determined that three ofthe eight criteria Criteria four, six and eight have been met. 
Ofthe remaining criteria, the undersigned determines the following: 

2. It is concluded that Criterion One has been met. 

3. It is concluded that Criterion Two has not been met. 

4. It is concluded that Criterion Three has been met. 

5. It is concluded that Criterion Five has been met. 

6. It is concluded that Criterion Seven has not been met. 

7. It is concluded that, since the Petitioning Group has satisfied three Criteria \\ ith the Commission, and an 
additional three criteria above, the Petitioning Group has met more than five ofthe eight criteria and satisfactorily meets 
the requirement of 1 NCAC 15 .0209. 

II. The Tribal Roll 

8. It is concluded that the requirement for a tribal roll showing kinship ties has been met subject to the 
submission of addresses ofthe tribal members on the tribal roll. 



1097 NORTH CAROLINA REGISTER January 4, 1999 13:13 



CONTESTED CASE DECISIONS 



III. The 200 Year Requirement 

(A) 200 Year Genealogy 

9. It is concluded that the Jeffries famlK has documented its ancestry from people on the current tribal roll 
back more than 200 years to people identified as Indians. 

(B) Tribal Existence in North Carolina 200 Years Ago 

10. It is concluded that the Saponis, Occaneechis, Tutelos and Catavvbas were tribes indigenous to North 
Carolina 200 years ago. 

11. It is concluded that the Occaneechi and Tutelo were subsumed under the tribal name Saponi. 

12. It is Concluded that the Saponi and the Catawba Tribes interacted at Fort Christianna. lived together on 
at least two occasions, spoke the same Siouan language, and were otherwise allied. 

(C) Petitioning Group's Tribal Identity: 

13. Both rules dealing with the 200 year tribal link require that Petitioning Groups trace back to indigenous 
tribes, using the plural of the word. (I NCAC 15 .0208 and .021 1 ) 

14. The evidence on tribal identity indicates that James Jeffries of Xenia, Ohio identified his great grandmother 
as Tutelo-Saponi. Dr. McDowell identified his group which was primarily Guys with some Jeffries wives as Catawban. 

Geographic evidence indicates that the Jeffries and Guy families trace back to Greensville Countv, Virginia, remarkably 
close to Fort Christianna and the Saponi town of Junckatapurse. 

It is possible that both these early accounts are accurate. The Jeffries may be originally Tutelo-Saponi. The account 
of the Guy family may indicate either that the Guys are Catawban or of the Catawban stock or confederacy. 

These two families intermarried certainly by the early 1 800s if they had not done so earlier. The Tutelo. Occaneechi, 
Saponi and Catawba Tribes intermingled to a great extent on a number of occasions. 

It is shown by a preponderance of the evidence that this Petitioning Group traces back to the Saponi and Catawba 
Tribes, with the Saponi Tribe having subsumed both the Tutelo and Occaneechi Tribes. 

The rules do not require that a Petitioning Group must be singularly comprised of one tribe with no intennarriages 
in ancient or recent history. In fact, the rules use the plural word. "Tribes". 

15. It is therefore concluded that the Petitioning Group has traced its ancestry back 200 years to tribes 
indigenous to North Carolina in satisfaction of the requirement of I NCAC 15 .021 1. 

II. Designation Of A Tribal Name 

16. Although recent histoid has shown that many modem day tribes have recreated a tribal name, sometimes 
using geographic names in combination with tribal names, there are no statutes and no rules covering the designation of a 
tribal name. 

17. Neither party can be compelled to abide by regulations which do not exist and the undersigned can not 
adjudicate compliance with non-existent regulations. The selection of a tribal names is left to the good judgment of the 
Parties. 

Based on the above Conclusions of Law. the undersigned makes the following: 

RECOIVIIVIENDATION 

That the North Carolina Commission of Indian Affairs grant tribal recognition to the Petitioners. 



13:13 NORTH CAROLINA REGISTER January 4, 1999 109fi 



CONTESTED CASE DECISIONS 



ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 
P.O. Drawer 27747. Raleigh. N.C. 2761 1-7447. in accordance with North General Statute l50B-36(b). 

NOTICE 

The agency making the Final Decision in this contested case is required to give each party an opportunity to file 
exceptions to this recommended decision and to present written arguments to those in the agency who will make the final 
decision. G.S. l50B-36(a). 

The agency is required b\ G.S. 1 50B-36(b) to serve a copN of the final decision on all parties and to furnish a copy 
to the parties" attorney on record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Commission of Indian 
Affairs. 

This the 7* day of December. 1998. 



Dolores O. Smith 
Administrative Law Judge 



1099 NORTH CAROLINA REGISTER January 4, 1999 13:13 





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